DISH - TiVO Case: Stay granted pending appeal

[riffjim4069]

I recall you said several times E*'s chance for settlement had long passed.

...and receive "best customer" licensing terms. Right now whatever Tivo wants, Tivo gets. I just wanted to place my statement in its proper context.

I recall you saying E* was going to win this case, E* was going to have the jury's verdict overturned, there was no way E* would be found in contempt, the USPTO would void Tivo's patents, etc. None of those things happened.

Anyway, regarding this ruling...absolutely nothing has changed in this case or its eventual outcome, but I am very glad to see that E* customers will not be adversely affected.

 

[vampz26]

Yes, the court found infringement, the Judge upheld the jury's verdict and ordered E* to disable all infringing DVRs, the appeals court upheld the jury's verdict, E* did not obey the court order and were subsequenly ruled to be in contempt of court. Did I miss something?

While E* receiving a stay while the contempt motion is being appealed is good news for DVR customers, it will not affect the ultimate outcome in which the appeals court will uphold Judge Folsom's contempt ruling. The only thing "not proven" is how E* will fare on their contempt appeal process...although the outcome is just a matter of procedure at this point.

The appeals court decision to continue the stay was a prudent and conservative decision in order to lessen the impact on millions of DVR customers (good thing) while additional fees and penalties will continue to mount up against E* during the stay. You can believe what you wish to believe, but the facts are the facts and no amount of wishful thinking will change them.

You can sum up this whole statement by saying..."everything you thought you knew may be wrong"....

 

[jacmyoung]

...I recall you saying E* was going to win this case,

We will have to wait and see.

E* was going to have the jury's verdict overturned,

Never said that, in fact I said many times E* did infringe last time, only that they infringed only half of the claims. The other half was overturned by the appeals court. Only that half was enough to find infringement last time.

there was no way E* would be found in contempt,

I never said no way, it was always possible for the district court to use its wide latitude, not often but it happens, but on appeal, the appeals court job is to ensure such wide use of power is narrowed down.

the USPTO would void Tivo's patents, etc.

The USPTO desicion is not made yet. But they will not void the TiVo's patent, only to invalidate the software claims of the TiVo's patent if it happens.

Anyway, regarding this ruling...absolutely nothing has changed in this case or its eventual outcome, but I am very glad to see that E* customers will not be adversely affected.

I don't know how one can say the eventual outcome absolutely will not change. If so this whole appeal thing and the stay order would really have been a sham and the biggest injustice to TiVo before it even started, if your assertion were right.

 

[jacmyoung]

BTW, have we heard from TiVo yet? On 6/3/09 they said they were "confident" the appeals court would deny E*'s stay motion.

 

[vampz26]

We will have to wait and see.



Never said that, in fact I said many times E* did infringe last time, only that they infringed only half of the claims. The other half was overturned by the appeals court. Only that half was enough to find infringement last time.



I never said no way, it was always possible for the district court to use its wide latitude, not often but it happens, but on appeal, the appeals court job is to ensure such wide use of power is narrowed down.



The USPTO desicion is not made yet. But they will not void the TiVo's patent, only to invalidate the software claims of the TiVo's patent if it happens.



I don't know how one can say the eventual outcome absolutely will not change. If so this whole appeal thing and the stay order would really have been a sham and the biggest injustice to TiVo before it even started, if your assertion were right.

You can sum up this whole statement by saying..."everything you thought you knew may be wrong"....

 

[jacmyoung]

You can sum up this whole statement by saying..."everything you thought you knew may be wrong"....

That is your job

BTW, for those that think a stay of injunction is merely a procedural thing, on this same day the same appeals court panel denied another request to stay the injunction pending appeal in another patent case:

http://www.cafc.uscourts.gov/motions/Orders/2009/2009-1342.7-1-09.1.PDF

 

[rockymtnhigh]

This thread is solely for discussion of the granting of the stay pending the resolution of the appeal. It is not intended to be, nor will it be, a full discussion of all aspects of the litigation, the patent system, and etc. Given the past history of the Tivo vs. Echostar thread(s), we will take steps to ensure that the discussion remains on topic. If you cannot abide by those rules, do not post in this thread. Thank you.

 

[tigerfan33]

I wonder how big a gamble Dish is taking without settling with Tivo. If Dish does lose this, the last few Q's with losing subs will look very good compared to what will happen if things do not work out for Dish with this case. I know I will take a second look at another provider if they fail.

 

[Skyhi]

I wonder how big a gamble Dish is taking without settling with Tivo. If Dish does lose this, the last few Q's with losing subs will look very good compared to what will happen if things do not work out for Dish with this case. I know I will take a second look at another provider if they fail.

If my DVR is shutoff, I'll signup for D* that same day. Fortunately, I'm very confident that it will never come to that.

 

[vurbano]

it means the courts are at least being fair about the whole thing for once...and not just allowing Tivo to commit acts of extortion at will...

I'm sure the Tivo 'supporters' will whine for reasons I may never quite understand...but this is the best decision under the circumstances...

I don't understand they stay allowing Dish to keep stealing from Tivo in the first place.

 

[mike123abc]

I don't understand they stay allowing Dish to keep stealing from Tivo in the first place.

Perhaps the appeals court Judges, having seen the case before, did not like the ruling that Judge Folsom provided. Remember they have seen the case before in depth, they have a good idea of what is going on with it. This is why the stay is significant, they already have extensive knowledge.

 

[jacmyoung]

TiVo issued their press release, and they are again "confident" that the appeals court will uphold Judge Folsom’s ruling, even though they were also "confident" last time that the appeals court would deny E*’s stay motion. But the interesting part is TiVo tried to make something out of the appeals court’s "expedited briefing schedule" as if it implied the appeals court was ruling in TiVo’s favor. Such speculation has no basis.

For the appeals court to require an expedited briefing schedule, usually the parties must first motion for such expedition. Neither party filed for such motion. Therefore the only other reason for the appeals court to initiate such requirement would usually be that there are other related court cases that are dependent on the outcome of this appeal in order to move forward in a timely manner.

Guess what, there is one such case. It is the E*’s declaratory judgment case against TiVo. The Declaratory Judgment Act provides such venue intended to address the issue in a timely manner. Judge Folsom had most recently stayed this declaratory case pending the outcome of this appeal. An expedited appeal process may serve to fulfill the purpose of E*’s declaratory case, that is to determine if the new design still infringe or not, in an expeditious way.

One other point I want to make is, the appeals court said if the defendants manage to demonstrate the doubt whether their design around still infringes, that is enough to stop a contempt proceeding. The defendant does not need to prove more than the doubt in a contempt proceeding.

Now the question is, if the appeals court had just stayed the lower court order because E* had "established strong likelihood of success on merits," then did E* also establish the doubt? Because the "doubt" is all E* needs as far as the contempt is concerned.

In the declaratory case however, E* needs to move beyond the issue of "doubt" and prove non-infringement.

 

[riffjim4069]

I don't understand they stay allowing Dish to keep stealing from Tivo in the first place.

Well...they're not technically stealing since the court will award additional damanges to Tivo. Although I was never a big fan of the Tivo patents the Judge, Jury, Courts, and USPTO have ruled and opined on this matter. Like it or not, Dish Network is a patent infringer and now they are a willful court order violator. I fully supported Dish Network litigating this matter in the courts and challenging the Tivo's patents in front of the PTO. However, this war was fought and won, and it's my opinion that E* should step-up and do the right thing - license Tivo IP.

Anyway, I am glad the courts decided to extend the stay during the appeal (it was the prudent thing to do)...and I am glad this case is on the fast-track as they try to place it on the November docket. Unless E* and Tivo reach a settlement this summer, there is nothing new to post until the appeals court begins reviewing this case later in the year.

I am officially taking an extended vacation from discussion Tivo versus EchoStar and EchoStar versus Tivo. Time to work on my pleasant demeanor and relaxed attitude over the summer months. :

 

[jacmyoung]

...Unless E* and Tivo reach a settlement this summer, there is nothing new to post until the appeals court begins reviewing this case later in the year...

Plenty of other things can and will happen.

For one thing, before Judge Folsom is the status conference on additional sanctions, though it will be interesting to see how it will proceed given the appeals court stay order.

 

[DAVEGTESTR]

will it ever come to that...

If my DVR is shutoff, I'll signup for D* that same day. Fortunately, I'm very confident that it will never come to that.

I already have D* DVR just in case...but I don't think it will come to that.
Try to check a DTV receiver ID without a contract...it took several calls, 2 hangups and 2 10-12 min. waits. Not to mention trying to activate it after getting LOS...TBD I'll stick with the great customer service of DISH.

 

[rockymtnhigh]

Vampz - can it. Keep the discussion relevant to the stay granted by the court, and any implications it has. Have I not made myself clear on that?

 

[Skyhi]

YES, just a ruling on the stay - the stay is in place pending the appeal. It is definitely good for Echostar's case, but ultimately its the actual decision that matters.

Now it appears the appeals court three-judge panel had considered E*'s appeal having strong likelihood of success on merits, which was the reason E* got the stay.

I recall you said several times E*'s chance for settlement had long passed.

I have to strongly disagree with both of you. The stay means nothing (good or bad) to E*'s appeal. If it wasn't granted, E* would be irreparably harmed notwithstanding the result of the appeal. The court granted the stay as a procedural "insurance" policy in favor of E*.

 

[rockymtnhigh]

I have to strongly disagree with both of you. The stay means nothing (good or bad) to E*'s appeal. If it wasn't granted, E* would be irreparably harmed notwithstanding the result of the appeal. The court granted the stay as a procedural "insurance" policy in favor of E*.

I agree with that. It certainly would have been devastating for Echostar if the stay was not granted. AND on that, I can't see how Tivo spins that development in a positive way. But I personally think this is not really a discussion that has much more to say. The court issued the stay, and we now wait for the actual decision of the court.

 

[jacmyoung]

I have to strongly disagree with both of you. The stay means nothing (good or bad) to E*'s appeal. If it wasn't granted, E* would be irreparably harmed notwithstanding the result of the appeal. The court granted the stay as a procedural "insurance" policy in favor of E*.

I have to strongly disagree too

If the reaon for a stay were to avoid irreparable harm to E*, the appeals panel would have said that. Just read what they said in 2006, and how they denied the stay motion in another case I linked earlier. But here is no mentioning of any harm to E* cited as a factor, if it were a factor the decision makers would be compelled to state such.

Additionally, even if there may be "irreparable harm" to E*, the question is whether such harm factor militate in E*'s favor or not. In doing so "irreparable harm" to TiVo must also be considered. The appeals court simply did not go there, they relied on the merits.

Contempt of the court is a very serious offense, people go to jail for such offense, talk about "irreparable harm" when they go to jail. I am not saying this is the case here just to make a point. E* could easily avoid such irreparable harm by signing an agreement with TiVo. Many other companies already have such agreements with TiVo without any harm done to them. One can even argue that DirecTV benefited a great deal by its agreement with TiVo, why not E*? If there is any harm, E* brought it onto themselves.

 

[Skyhi]

I have to strongly disagree too

If the reaon for a stay were to avoid irreparable harm to E*, the appeals panel would have said that. Just read what they said in 2006, and how they denied the stay motion in another case I linked earlier. But here is no mentioning of any harm to E* cited as a factor, if it were a factor the decision makers would be compelled to state such.

Additionally, even if there may be "irreparable harm" to E*, the question is whether such harm factor militate in E*'s favor or not. In doing so "irreparable harm" to TiVo must also be considered. The appeals court simply did not go there, they relied on the merits.

Contempt of the court is a very serious offense, people go to jail for such offense, talk about "irreparable harm" when they go to jail. I am not saying this is the case here just to make a point. E* could easily avoid such irreparable harm by signing an agreement with TiVo. Many other companies already have such agreements with TiVo without any harm done to them. One can even argue that DirecTV benefitted a great deal by its agreement with TiVo, why not E*? If there is any harm, E* brought it onto themselves.

I respectfully disagree. I stand by my story that this was merely a procedural courtesy (to E* and its customers) regardless of what the court stated. It's not an uncommon for an appellate court to take this sort of action.....we'll agree to disagree.