Dish: Ready to shut down DVRs if it loses lawsuit

[Scott Greczkowski]

Jim define colorably different.

"colorably different" is a matter of opinion. Its like comedy... many people (myself included) thought that Betty White was really funny on SNL this past week, while others will say that she wasn't funny.

Who is right?

Thats the line we are walking...

So what is colorably different?

 

[riffjim4069]

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?

I've read about "colorably different" the past couple years and still have no idea what the hell it means...and I've gotta Jethro Bodine education.

 

[Voyager6]

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.

I thought that a judge was supposed to be impartial and apply the law equally.

Federal Judicial Oath

"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."

 

[Voyager6]

I found this explanation for colorable.
October 23, 2009

AVOID THE UNCLEAR WORD “COLORABLE” -- Be wary of words that have one meaning to the layperson and a different meaning to IP experts. An example that the Curmudgeon has harped on is “comprising,” which has a special meaning in patent claims. Another is “colorable.” Two general dictionaries give “plausible” as a synonym for colorable. According to Black’s Law Dictionary, however, in the IP field a “colorable alteration” is a modification that effects no real or substantial change. In the current Senate patent reform bill, patent infringement may be willful if “the infringer engaged in conduct that was not colorably different from the conduct previously found to have infringed . . . .” It appears that the bill is using the general definition of “colorable,” not the IP definition.
​

 

[riffjim4069]

Jim define colorably different.

It means different things to different people and it depends on the context it is being used. To me, colorably different in this case means two things:

1) similar or closely related processes that still violate/infringe Tivo's patents and
2) the ruling judge (i.e., Judge Folsom) is best qualified to determine if DISH products violate his order

 

[riffjim4069]

I can see where this thread is going...all questions have been asked, answered and debated a millions times in other threads.

Deja vu!!! It seems like we keep repeating this same thread every couple of months...

 

[Bob Haller]

Would E be required to kill dish pal DVRs too?

 

[Pakbackr]

From what I am being told NO it does not, none of the ViP receivers are part of this lawsuit. However some TiVO fans and lazy reporters will tell you yes because they want you to be scared.

What other DVRs does DISH have?

 

[riffjim4069]

I thought that a judge was supposed to be impartial and apply the law equally.

Federal Judicial Oath

...yes, he did that for years when a jury found E* guilty of infringment...he did it when he practically begged both parties to enter into a licensing agreement...he did it again when he found SATS in contempt of court...my point is that he has been looking at this case inside-out since 2005 (to include dozens of evidentuary trials, expert testimony about software workarounds, comparitive analysis about the many versions of DVRs software, etc.); there is not much Judge Folsom doesn't already know about this issue, which is why the CAFC said Folsom was the de facto expert in these kinds of trial matters.

 

[riffjim4069]

Would E be required to kill dish pal DVRs too?

Having seen the DTVPal DVR in action...I cannot see how they would ever be subject to any of the Tivo patents...not even their newly awarded patents: CC and Season Pass Manager.

 

[Thomas22]

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

Perhaps you didn't hear about the recent contempt of court ruling by judge Folsom. Dish claimed that their workaround created products more than colorably different from the named products and not subject to the injunction. TiVo disagreed. So did Judge Folsom. So there is the "who" and the 'what forum".

"Where the alteration in the device is "merely colorable" and obviously was made for the purpose of evading the decree without essential change in the nature of the device, the courts will try the question of infringement by the new device in proceedings for contempt for violation of the injunction" KSM appeal

 

[Tyralak]

You never answered my question, "Thomas". What would tivo say if they found out about you talking about the case on a public board like this?

 

[Jhon69]

What amazes me is the timing of these posts right after Dish adds subscribers and DirecTV lost subscribers?.Guess it's time again to remind Dish subscribers why they should subscribe to DirecTV and Tivo and pay a higher price.

 

[Mike_H]

Was any of this information in Dish's latest filings with the SEC? To be honest, I would have to take a hard look at switching should my 510, 501, and 622 be shut down. Dish has done nothing over the past 5 months that gives me any reason to believe they want me around as it is.

 

[riffjim4069]

Was any of this information in Dish's latest filings with the SEC? To be honest, I would have to take a hard look at switching should my 510, 501, and 622 be shut down. Dish has done nothing over the past 5 months that gives me any reason to believe they want me around as it is.

I honestly wouldn't lose any sleep over your DVRs being shutdown...however, the fees are another sordid story. Of course, if PQ quality is a major issues then you're not going to get a much better product with DirecTV...both D* and E* look like rubbish compared to my FiOS TV.

 

[Mike_H]

FiOS isn't available in my area. My options are Dish, DirecTV or Charter Cable. And the best sales pitch Charter could come up with was that all of my neighbors have it so the service must be good. I had to point out to the door to door sales droid that my neighbors have charter because it's their only choice, not because it is any good.

 

[xterra]

Why doesn't this effect Directv? Don't they have a dvr?

 

[Kheldar]

Why doesn't this effect Directv? Don't they have a dvr?

Yes, but they license the TiVo patents.

 

[Thomas22]

Why doesn't this effect Directv? Don't they have a dvr?

Thread drift.

 

[Tyralak]

Why doesn't this effect Directv? Don't they have a dvr?

Yes, but they wisely bought ReplayTV when it was up for sale. So they have their patents now, and can tell tivo to go suck a brick.