Dish: Ready to shut down DVRs if it loses lawsuit

[harshness]

OK , so whats do different between the 625 and 622, besides the larger hardrive and 1 is HD and one is not.

The hardware and feature set are decidedly differentiated.

Those who have sat on a court case understand that the juror/jury are only permitted to consider within the scope of the lawsuit. The scope doesn't grow as new claims are hatched.


It sounds to me like Charlie is poor-mouthing his situation in an attempt to curry favor in the court of public opinion. I'm guessing he's got at least one or two zingers waiting in the wings.

 

[riffjim4069]

Please show us where in the Permanent Injunction the VIP series DVR's are specifically named.

The highlighted portion of your posting...(i.e., the VIPs are included if they violate the '389 patent). Again, I am not saying they infringe (although there is plenty of antecdotal evidence suggesting they do), but Judge Folsom will make this determination. If I were Dish Network I would not want Judge Folsome ruling on this issue.

It is FURTHER ORDERED that each Defendant, its officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice hereof, are hereby restrained and enjoined, pursuant to 35 U.S.C. § 283 and Fed. R. Civ. P. 65(d), from making, using, offering to sell, selling, or importing in the Untied States, the Infringing Products, either alone or in combination with any other product and all other products that are only colorably different therefrom in the context of the Infringed Claims, whether individually or in combination with other products or as a part of another product, and from otherwise infringing or inducing others to infringe the Infringed Claims of the ‘389 Patent.

 

[Thomas22]

Dish applied for a patent for the software that was found to be in contempt. There is no other patent applied for. It's all the same stuff.

 

[Voyager6]

The highlighted portion of your posting...(i.e., the VIPs are included if they violate the '389 patent).

"If they violate the '389 patent" is the important part. No court or jury has determined that the VIP series are infringing on the '389 patent. They would not be included in the permanent injunction until such a determination is made.

 

[mike123abc]

"If they violate the '389 patent" is the important part. No court or jury has determined that the VIP series are infringing on the '389 patent. They would not be included in the permanent injunction until such a determination is made.

If the judge looks at the code and decides it is the same infringing code running on the new boxes, it would fall under the injunction.

 

[Voyager6]

If the judge looks at the code and decides it is the same infringing code running on the new boxes, it would fall under the injunction.

There would have to be a motion by TIVO and then a hearing and then appeals and so on and so forth. This is a long way from being decided.

 

[Thomas22]

"If they violate the '389 patent" is the important part. No court or jury has determined that the VIP series are infringing on the '389 patent. They would not be included in the permanent injunction until such a determination is made.

I think there is a problem with the tense (in a legal sense). If it is determined that the ViP models are only colorably different from the named models then the damages for contempt won't start with the date of the contempt finding. The damages will be retroactive to the date they were offered for sale.

 

[dangue]

If the judge looks at the code and decides it is the same infringing code running on the new boxes, it would fall under the injunction.

Here's where I'm confused... I thought the biggest difference between the earlier DVRs and the VIP series DVRs is that one provided DVR functionality via software and the other provided DVR functionality via hardware. That seems to be much more than minor changes to code.

 

[dangue]

I think there is a problem with the tense (in a legal sense). If it is determined that the ViP models are only colorably different from the named models then the damages for contempt won't start with the date of the contempt finding. The damages will be retroactive to the date they were offered for sale.

I agree with you there. If they are found to violate the patent, then they have always been in violation of the patent and damages will be calculated based on that time frame.

 

[bradleys]

SEC filings are about the worst place to gauge the possible results of a court proceeding.

The filings always paint a scenario of an inevitable zombie apocalypse.

 

[Voyager6]

I think there is a problem with the tense (in a legal sense). If it is determined that the ViP models are only colorably different from the named models then the damages for contempt won't start with the date of the contempt finding. The damages will be retroactive to the date they were offered for sale.

The point I was making is that the VIP series could not be ordered to be shut down (DVR functionality) until it is determined in court that they infringe on the '389 patent. Judge Folsom has not addressed the VIP series DVR's and they are not subject to the Permanent Injunction, yet.

 

[dishcomm]

If this judgement is enforced in full it would be devastating to Dish Network.
Based on that opinion, it appears that the ruling is draconian in nature.
I do no think an injunction that could protentially put Dish Network out fo business or cause at least serious financial injury, would not stand up to appeal.
However it is incumbent upon both parties to go to a negotiating table and get this hammered out for the benefit of BOTH firms.

 

[Thomas22]

The point I was making is that the VIP series could not be ordered to be shut down (DVR functionality) until it is determined in court that they infringe on the '389 patent. Judge Folsom has not addressed the VIP series DVR's and they are not subject to the Permanent Injunction, yet.

The point I was making is that the injunction already orders the ViP series to be disabled if they are only colorably different from the named models. Ergen knows.

 

[pabeader]

The point I was making is that the injunction already orders the ViP series to be disabled if they are only colorably different from the named models. Ergen knows.

where does it order that?

 

[Scott Greczkowski]

Thomas please explain what colorably different means... because no one seems to understand what it means this includes many lawyers and judges.

Its almost like what is the meaning of Breach of Peace... What is it?

 

[Bob Haller]

The filings always paint a scenario of an inevitable zombie apocalypse.

sounds like my kinda event

 

[mike123abc]

Here's where I'm confused... I thought the biggest difference between the earlier DVRs and the VIP series DVRs is that one provided DVR functionality via software and the other provided DVR functionality via hardware. That seems to be much more than minor changes to code.

The problem is that no one knows exactly what the situation is outside of TiVo/Dish and the Judge. It is all just speculation because no one knows what code (if any) is shared between the boxes.

1. Dish has to finally lose the first lawsuit, this should be getting close, if the appeals court decides not to hear the appeal en banc then it is over. If they decide to hear it, it could go on for who knows how much longer. It is unlikely the Supreme Court would hear it since they already declined to hear it once before.

2. The judge then gets to make his decisions. TiVo will probably try to push that the new DVRs have the same code. Do they? The judge could decide they do, or he could decide it should go to a new trial. Dish would probably want to appeal the inclusion of ViPs if they get thrown in.

Dish is just pointing out that in worst case their appeal is denied, then the Judge rules they share the same code, so fall under the injuction, they are unable to work a deal with TiVo, and the ability to sell DVRs goes bye bye. All the stars have to align to get to that point.

 

[Tyralak]

Hey, Thomas. I wonder what would happen if tivo knew you were talking about the case on a public message board. Doesn't that break confidentiality?

 

[riffjim4069]

"If they violate the '389 patent" is the important part. No court or jury has determined that the VIP series are infringing on the '389 patent. They would not be included in the permanent injunction until such a determination is made.

Correct, no jury has specifically said models 622, 722, 722k or 612 infringe, but they could be enjoined without a trial. This process would involve a bench trial... and I am pretty sure Judge Folsom already knows how he is going to rule in this matter. Additionally, Judge Folsom's injunction also applies to the 922 which was still vaporware at the time of the order. Bottom line: Dish Network cannot build, sell or supply DVRs that infringe the '389 patent...period. Dish Network has already been found guilty of infringing the '389 patent and they have also been ruled in contempt of court for not disabling offending DVRs. Historically the courts do not give infringers much slack...hence the "colorably different" paragraph.

 

[Voyager6]

The point I was making is that the injunction already orders the ViP series to be disabled if they are only colorably different from the named models. Ergen knows.

And who is going to determine if they are only "colorably different" and in what venue?