TIVO vs E*

[jacmyoung]

That is the DISH case against TIVO not the TIVO case vs. DISH.

Two different cases. Don't muddle it and confuse people. Please.

Both cases at present time are trying to address the same issue, whether the redesigned products infringe or not. Since Judge Folsom had already made his decision that the redesigned products still infringe, I think he can dismiss this new case if he wants to. Of course E* will likely appeal if he does so.

The question is if the appeals court can or will combine the two appeals since they address the same issue?

Of course E* may not appeal since E* said before if Judge Folsom found the redesigned products only colorably different, this new case would likely be moot. E* will just have to let the appeals court make the decision on the current case.

 

[jacmyoung]

...A court can dismiss a case for being frivolous. That's all I was saying.

Of course, I just have never seen this Federal Circuit, which is designed to review all appeals in patent cases, ever rejected an appeal on such ground.

The TiVo folks wanted to use other unrelated subject matter to argue that this very Federal Circuit may simply reject this E* appeal as frivolous, in the patent cases which are civil cases, there is no such precedent I know of. But I am no expert on this one.

 

[rockymtnhigh]

Of course, I just have never seen this Federal Circuit, which is designed to review all appeals in patent cases, ever rejected an appeal on such ground.

The TiVo folks wanted to use other unrelated subject matter to argue that this very Federal Circuit may simply reject this E* appeal as frivolous, in the patent cases which are civil cases, there is no such precedent I know of. But I am no expert on this one.

But what is your sample size for that claim? Seriously.

 

[jacmyoung]

But what is your sample size for that claim? Seriously.

Quite big, but not thorough, which was why I said I was no expert.

Can anyone cite one patent case where an appeal was rejected on frivolous ground?

 

[vampz26]

Ok guys, go to your respective corners and take a short time out.

I wasn't even going near that one.

 

[Curtis0620]

This probably seals the fate of all the DISH DVR's.

 

[jacmyoung]

This probably seals the fate of all the DISH DVR's.

This new case addresses the 8 named DVRs still.

As long as the order is stayed, the fate of the judge's decision is in the appeals court hands and likely sealed. We'll see.

 

[CuriousMark]

I can't believe they transferred it to him (actually, I can).

The whole reason Delaware transferred it to Texas was because of Folsom's expertise. It was assigned to Ward because he was up on the round robin. He is now just shipping it over to Folsom where it always belonged. Folsom now has the case and can take up the question of whether the new DVRs are infringing. He no long needs to wait for TiVo to file a motion on the subject, he has Dish making the request in this case. Dish wanted to expedite finding their new DVRs free of infringement and now they will get what they asked for. Is that bad for Dish? Maybe, given that the current workaround software has been found infringing and Dish's expert says that the feature found infringing is probably also in the new DVRs. But it will take a round of discover, briefs and a hearing to get to the bottom of it, so don't expect anything to come of this quickly.

[Edit]I see above that this case is only the eight named DVRs which I had forgotten. I guess I have to agree with jac on this then. I suspect the judge can sit on it until other issues are cleared up and then dismiss it as moot when he sees fit.

 

[vampz26]

This new case addresses the 8 named DVRs still.

As long as the order is stayed, the fate of the judge's decision is in the appeals court hands and likely sealed. We'll see.

I guess the haters will need to find another cross to burn until then.

 

[Mainer_Ayah]

Though I have never seen the term "frivolous appeal" used. I guess if a party decides to appeal a decision to the appeals court knowing the appeals court has no jurisdiction over such issue, one can call it a frivolous appeal.

Even in those cases the appeals court still explained in detail why they did not have jurisdiction over such issues.

FRom the CAFC rules:

Rule 38. Frivolous Appeal — Damages and Costs
If a court of appeals determines that an appeal is frivolous,
it may, after a separately fi led motion or notice from
the court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.

Practice Notes
Warning Against Filing or Proceeding with a Frivolous Appeal or Petition. The court’s early decision in Asberry v. United States, 692
F.2d 1378 (Fed. Cir. 1982), established the policy of enforcing this rule vigorously. Since then, many precedential opinions have included
sanctions under the rule. Damages, double costs, and attorney fees, singly or in varying combinations, have been imposed on counsel,
parties, and pro se petitioners for pursuing frivolous appeals.
Challenging a Frivolous Appeal. If an appellee or respondent considers an appeal or petition frivolous, the appellee or respondent must
fi le a separate motion with that allegation. The assertion that an appeal is frivolous must be accompanied by citation to the opposing brief
or the record below with clear argument as to why those citations establish that the appeal is frivolous. A party whose case has been
challenged as frivolous is expected to respond or to request dismissal of the case.

 

[Hall]

That is the DISH case against TIVO not the TIVO case vs. DISH.

Two different cases. Don't muddle it and confuse people. Please.

It's the same issue though. Dish just tried to get a different court to make a decision, obviously in their favor, so that they could that decision to help them with Judge Folsom in the "TiVo vs Dish" case. What has happened is, the Delaware court more or less said, "Hey, Judge Folsom down in Texas is already handling an almost identical case and obviously has experience with this stuff, so let's transfer it to him". Rest assured, that is NOT what Dish wanted to happen.

Maybe Thomas22 could start a new thread titled "Dish vs TiVo".

 

[rockymtnhigh]

It's the same issue though. Dish just tried to get a different court to make a decision, obviously in their favor, so that they could that decision to help them with Judge Folsom in the "TiVo vs Dish" case. What has happened is, the Delaware court more or less said, "Hey, Judge Folsom down in Texas is already handling an almost identical case and obviously has experience with this stuff, so let's transfer it to him". Rest assured, that is NOT what Dish wanted to happen.

Maybe Thomas22 could start a new thread titled "Dish vs TiVo".

No,no, no... One cesspool is enough.

Oh, did I say that? I meant thread.

 

[vampz26]

No,no, no... One cesspool is enough.

Oh, did I say that? I meant thread.

Did I say ferilizer earlier?

 

[Greg Bimson]

[Edit]I see above that this case is only the eight named DVRs which I had forgotten. I guess I have to agree with jac on this then. I suspect the judge can sit on it until other issues are cleared up and then dismiss it as moot when he sees fit.

All TiVo would need to do is file a counterclaim against the unnamed receivers.

Or, file another contempt motion against the unnamed receivers.

With the appeal certain, TiVo should file another contempt motion.

 

[justlost]

This new case addresses the 8 named DVRs still.

Which are the 8 named DVRs?

 

[Smith P.]

Posted ABOVE !

 

[jacmyoung]

FRom the CAFC rules:

Rule 38. Frivolous Appeal — Damages and Costs
If a court of appeals determines that an appeal is frivolous,
it may, after a separately fi led motion or notice from
the court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.

Practice Notes
Warning Against Filing or Proceeding with a Frivolous Appeal or Petition. The court’s early decision in Asberry v. United States, 692
F.2d 1378 (Fed. Cir. 1982), established the policy of enforcing this rule vigorously. Since then, many precedential opinions have included
sanctions under the rule. Damages, double costs, and attorney fees, singly or in varying combinations, have been imposed on counsel,
parties, and pro se petitioners for pursuing frivolous appeals.
Challenging a Frivolous Appeal. If an appellee or respondent considers an appeal or petition frivolous, the appellee or respondent must
fi le a separate motion with that allegation. The assertion that an appeal is frivolous must be accompanied by citation to the opposing brief
or the record below with clear argument as to why those citations establish that the appeal is frivolous. A party whose case has been
challenged as frivolous is expected to respond or to request dismissal of the case.

Rules are rules, I asked anyone to cite me one such patent case where frivolous appeal was determined. Besides I don't think TiVo is even accusing E* of frivolous appeal, which requires a separate motion from TiVo, only that the stay should be denied pending appeal.

If it is true as Thomas22 said E*'s first appeal briefing had been already scheduled by 8/17/09, then without TiVo filing a motion for frivolous appeal, the issue of frivolous appeal is not even present.

 

[Thomas22]

I see above that this case is only the eight named DVRs which I had forgotten.

It doesn't say that in the lawsuit. It isn't limited to any particular model(s). Dish asked that they be declared non-infringing. Period.

PRAYER FOR RELIEF​

WHEREFORE, Plaintiffs pray for relief against Defendant as follows:
(a) For a declaration that Plaintiffs do not infringe any valid claim of the '389 Patent;
(b) For such other and further relief as this Court may deem just and proper.

 

[jacmyoung]

The whole reason Delaware transferred it to Texas was because of Folsom's expertise. It was assigned to Ward because he was up on the round robin. He is now just shipping it over to Folsom where it always belonged. Folsom now has the case and can take up the question of whether the new DVRs are infringing. He no long needs to wait for TiVo to file a motion on the subject, he has Dish making the request in this case. Dish wanted to expedite finding their new DVRs free of infringement and now they will get what they asked for. Is that bad for Dish? Maybe, given that the current workaround software has been found infringing and Dish's expert says that the feature found infringing is probably also in the new DVRs. But it will take a round of discover, briefs and a hearing to get to the bottom of it, so don't expect anything to come of this quickly.

[Edit]I see above that this case is only the eight named DVRs which I had forgotten. I guess I have to agree with jac on this then. I suspect the judge can sit on it until other issues are cleared up and then dismiss it as moot when he sees fit.

BTW E* can simply withdraw the case too. It would be stupid for E* to include all the newer DVRs in this new case anyway because TiVo never accused of them infringing. The DE court had consistently used the term "redesigned products" when discussing this new case. E* never claimed they "redesigned" the newer DVRs, even though some people insisted E* said back in 06 the VIPs got software update too. Even then it is not the same as claiming they had redesigned the VIPs.

 

[jacmyoung]

It doesn't say that in the lawsuit. It isn't limited to any particular model(s). Dish asked that they be declared non-infringing. Period.

Not in E*'s initial complaint, but during the DE court debate, the term used was "redesigned products." Regardless though, it is moot now.

E*'s objective was to move the forum, once the case was transferred to the TX court, and once Judge Folsom ruled the redesigned DVRs still infringed, this new case was useless for E*.