TiVo Sued: A Taste of Their Own Medicine

[Greg Bimson]

To say "cannot sell, offer to sell or use after the injunction takes effect" is the same as saying "to disable the DVR functions before the injunction takes effect", the cut off time is the same, the date the injunction takes effect, after which cannot have the DVR fucntions, or cannot sell, offer to sell or use.

AGAIN, and I don't know why this is difficult:

The injunction in i4i v. Microsoft does not address a single product sold or installed before the injunction became active. Those products are not subject to the injunction.

The injunction in TiVo v. EchoStar orders Echostar to complete one very specific action regarding installed products once the injunction became active.

If after the date, the DVRs functions are still used, you say it is a violation, then you must also insist, after the date it is still sold, offered to sell or used, it is also a violation.

You need to go back and look at a case you cited once before: StarBrite v. Gavin Products.

A product which is modified to avoid an injunction and then sold must be analyzed for colorable difference and infringement before it can be considered in contempt of an injunction order prohibiting sales of infringing products. That's the KSM analysis.

What you are failing to even understand are the two distinct issues in TiVo v. EchoStar:

1) the products found infringing, installed before the injunction became active are subject to a disable order, and Judge Folsom found contempt for failure to disable DVR functionality.

2) the products modified or sold after the injunction became active were found both merely colorably different and infringing, and Judge Folsom found contempt for sales of infringing devices.

And I've argued that point everywhere. Joe Blow's four year old DVR 625 and John Doe's one year old DVR 625 are similar in every way, shape and form, except Joe Blow's DVR is subject to a disable clause. In order to ensnare John Doe's DVR into the injunction, it must be analyzed for both colorable difference and infringement.

So in order to ensnare Word 2010 into the injunction, it must be analyzed for colorable difference and infringement.

 

[Greg Bimson]

On the other hand, if you say it is ok to sell, offer to sell or use Word as long as it no longer has the “infringing custom XML editor” (even though it still has the custom XML editor), since the injunction only prohibits the Word “with the infringing custom XML editor”, then it is ok to continue to have the DVR functions as long as the DVRs are no longer “Infringing products”, since the injunction only required the DVR functions disabled “of the Infringing Products”, not if the products are no longer infringing products.

AGAIN:

If Microsoft modified the XML editor for Word 2010, it is no longer the "infringing custom XML editor."

That is completely separate from an order to disable those products which were installed. "Infringing Products" was defined by the court as eight models of DVR. Just because DISH/SATS wants to change the definition of "Infringing Products" to avoid an injunction doesn't escape the fact that "Infringing Products" only has one definition within the injunction.

 

[Curtis0620]

Protecting something is different from trying to hamstring any competition in the market place w/ law suits.

That is the DISH Twisted view.

 

[jacmyoung]

That is the DISH Twisted view.

That is not E*'s view, E*'s view is, they no longer infringing, therefore no longer violate TiVo's right, and in addition BTW, TiVo might not even have that right after all since the software claims are now rejected by the PTO.

 

[jacmyoung]

AGAIN:

If Microsoft modified the XML editor for Word 2010, it is no longer the "infringing custom XML editor."...

Then if E* modified the DVRs, they were no longer "Infringing Products".

You can't have it both ways. If you insist the DVRs are still "Infringing Products" whether E* modified them or not, then you must also insist the custom XML editor in 2010 Word is still "infringing custom XML editor" whether MSFT had modified it or not.

Only the court can declare later, after colorable difference and infringement analyses, whether they are no longer "infringing...", not according to E*, not according to MSFT, not according to you and not according me, based on your logic that is, so stick to it.

 

[Curtis0620]

That is not E*'s view, E*'s view is, they no longer infringing, therefore no longer violate TiVo's right, and in addition BTW, TiVo might not even have that right after all since the software claims are now rejected by the PTO.

I buy that. But not the TiVo has no right to protect itself view.

 

[Greg Bimson]

Then if E* modified the DVRs, they were no longer "Infringing Products".

Really? Where is that in the injunction?

Because from what I see, the "Infringing Products" that were installed as of the injunction date were ordered to have functionality disabled. That functionality was to be disabled for the life of the patent. Making the modification to disable DVR functionality from those devices would still keep those devices within the scope of the injunction until the patent expired.

Modifications did not change the legal definition of "Infringing Products", especially when the disable clause targeted only those devices found infringing.

You can't have it both ways. If you insist the DVRs are still "Infringing Products" whether E* modified them or not, then you must also insist the custom XML editor in 2010 Word is still "infringing custom XML editor" whether MSFT had modified it or not.

Both ways? Consistently KSM and StarBrite are ignored in order to make a point. Microsoft is making a new, modified version of Word called Word 2010, and you already have it found in contempt! And that is simply because it contains a custom XML editor, a modified version of the one found in Word 2003 and Word 2007. And yet there is still no citiation from the Microsoft injunction.

This is laughable.

 

[jacmyoung]

I buy that. But not the TiVo has no right to protect itself view.

Good we can agree on something.

 

[jacmyoung]

...Modifications did not change the legal definition of "Infringing Products", ...Microsoft is making a new, modified version of Word called Word 2010, ...

Then modification cannot change the definition of the "infringing custom XML editor" either, and since the injunction said "future Word products", and the appeals court confirmed the injunction meant "Word products with infringing custom XML editor" (regardless 2003, 2007 or 2010), and since when the appeals court made such statement, the 2010 Word with the custom XML editor already existed, so no, modification cannot change the legal definition of the "infringing custom XML editor" to something else, according to you.

 

[whatchel1]

Not really

That is the DISH Twisted view.

That is the view I had before I ever got the E* system I have not liked them since the death of replay and it selling out to Tivo. It's attitude has been from then we are the only one that has a right to offer a DVR.

 

[jacmyoung]

That is the view I had before I ever got the E* system I have not liked them since the death of replay and it selling out to Tivo. It's attitude has been from then we are the only one that has a right to offer a DVR.

Then you should feel relieved to know that the TiVo CEO recently had said you should consider TiVo as a DVR company, history.

Since his such statement, TiVo had stopped stocking their HDDVRs for sale, you cannot find them at TiVo's website, nor at BB. TiVo also did not show any new hardware at the recent CES show, and still has not said anything about any new DVRs.

 

[Greg Bimson]

...and since the injunction said "future Word products"...

And therein lies the problem:

Microsoft Corporation is hereby permanently enjoined from performing the following actions with Microsoft Word 2003, Microsoft Word 2007, and Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007 (collectively “Infringing and Future Word Products”) during the term of U.S. Patent No. 5,787,449:

Only Word 2003 and 2007 were "named products", while "Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007" require a colorable difference and infringement analysis before it could ever be found in contempt of the injunction.

Word 2010 was never named the "future Word product".

 

[jacmyoung]

And therein lies the problem:Only Word 2003 and 2007 were "named products", while "Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007" require a colorable difference and infringement analysis before it could ever be found in contempt of the injunction.

Word 2010 was never named the "future Word product".

Even if you can pin on the 2010 wording, what about the 2003 Word and 2007 Word? Did you not hear the appeals court say MSFT must stop selling, offering for sell and using the Word after 1/11/10?

We know they are still selling 2007 Word. How can you believe what the patch MSFT said they did? Shouldn't MSFT first stop the sell, offer for sell and use of the 2007 Word first after 1/11/10?

 

[whatchel1]

who bought them?

Then you should feel relieved to know that the TiVo CEO recently had said you should consider TiVo as a DVR company, history.

Since his such statement, TiVo had stopped stocking their HDDVRs for sale, you cannot find them at TiVo's website, nor at BB. TiVo also did not show any new hardware at the recent CES show, and still has not said anything about any new DVRs.

So who bought them? Or did they just run out of money because of all the lawsuits.

 

[jacmyoung]

So who bought them? Or did they just run out of money because of all the lawsuits.

No one has bought TiVo yet, and TiVo still has a lot of money, they just are not making much more money and don't seem to plan to make more money through their DVR business anymore

 

[Greg Bimson]

Even if you can pin on the 2010 wording, what about the 2003 Word and 2007 Word? Did you not hear the appeals court say MSFT must stop selling, offering for sell and using the Word after 1/11/10?

We know they are still selling 2007 Word. How can you believe what the patch MSFT said they did? Shouldn't MSFT first stop the sell, offer for sell and use of the 2007 Word first after 1/11/10?

Let's see...

Before 1/11/10, Microsoft was selling a product that infringed upon a patent.

After 1/11/10, Microsoft was selling a product that was modified to remove the infringing code.

Sounds like StarBrite v. Gavin. Only the internal infringing formulation was enjoined; by modifying Word 2007 it requires a colorable difference analysis and an infringement analysis, per KSM.

Meanwhile, DISH/SATS was enjoined from selling eight products which infringed. Five of those were modified. An infringement analysis and colorable difference analysis was performed on those five models, and it was found that they were merely colorably different from and infringing like the former unmodified models. Yes, a KSM analysis was performed.

Meanwhile, DISH/SATS was found in contempt AGAIN for failure to disable the installed devices as ordered. It isn't like the order to disable wasn't clear; some would like to forget that it was even in the injunction. The arguments I've seen so far have simply ignored that order.

 

[Amiga]

Then you should feel relieved to know that the TiVo CEO recently had said you should consider TiVo as a DVR company, history.

Since his such statement, TiVo had stopped stocking their HDDVRs for sale, you cannot find them at TiVo's website, nor at BB. TiVo also did not show any new hardware at the recent CES show, and still has not said anything about any new DVRs.

They did have an office on-site this year though, but TiVo doesn't always have a booth at CES.

On another note, Best Buy will have a TiVo with a new interface soon.

Charlie should have bought ReplayTV when he could have to deal with patent issues.

 

[jacmyoung]

They did have an office on-site this year though, but TiVo doesn't always have a booth at CES.

On another note, Best Buy will have a TiVo with a new interface soon.

Charlie should have bought ReplayTV when he could have to deal with patent issues.

Nothing was announced by TiVo at the CES, they only handed out some key chains. The so called Premiere DVR was a rumor, not confirmed. You would think when TiVo has been out of stock on the HDDVRs for sale, they would be quick to announce the new Premiere DVR already?

 

[jacmyoung]

Let's see...

Before 1/11/10, Microsoft was selling a product that infringed upon a patent...

And those products that were adjudicated to be the "Word products with the infringing custom XML editors" were the 2003 and 2007 Word products. So when the appeals court said MSFT must stop selling, offering to sell and use the Word products with the infringing custom XML editor after 1/11/10, they were refering to the 2003 and 2007 Word, according to you, since you refused to include the 2010 Word.

You also said once defined by the court as infringing, always infringing. Since 2007 Word has been defined by the court as one of the "Word products with the infringing custom XML editor", MSFT is now prohibited from selling, offer to sell and use the 2007 Word, since we are now in the post 1/11/10 period.

But MSFT still sells, offers to sell and uses the 2007 Word, so it is in contempt, according to you. The fact MSFT claims they did the modification for the 2007 Word does not change the definition that the 2007 Word is still one of the "Word products with the infringing custom XML editor" at all, again according to your logic.

 

[Amiga]

Nothing was announced by TiVo at the CES, they only handed out some key chains. The so called Premiere DVR was a rumor, not confirmed. You would think when TiVo has been out of stock on the HDDVRs for sale, they would be quick to announce the new Premiere DVR already?

They announced the new TiVos coming out through Best Buy already. Apple pulls this crap all the time trying to dump existing stock prior to launching an update / upgrade. They've already slipped up and placed Premiere documentation in an outgoing order, read up at the TiVo Community forums.

TiVo could announce something, like the 922, and never get it out the door. Listen, I received a personal demo of the 922, but I was also told it was nowhere near ready to ship.