TIVO vs E*

[jacmyoung]

Here is my wild theory on the effect of this new case had on the current case. It might be why Judge Folsom delayed his ruling and had to order the 2/09 hearing for a full discovery. Remember he said E* would be in contempt even if the design around was non-infringing. I wondered why then it took him so long, and also costing both parties a lot of money to go through the two hearings. The 02/09 hearing alone was said to cost TiVo about $20M.

This new case was filed on 6/2/08, TiVo tried to dismiss it rather asking the DE court to transfer it. The DE court's decision to deny TiVo's motion to dismiss was made before the 2/09 hearing, maybe even before the 9/4/08 hearing because the DE judge mentioned in his decision that TiVo was complaining they did not have a chance for a full discovery yet. The DE judge said ok here you go, get your full discovery then find out what Judge Folsom would say.

The DE court such decision, if already made around the 9/4/08 hearing based on the time line, could have forced Judge Folsom to order the 2/09 hearing and full discovery, otherwise the two courts would have disagreed with each other, one would have said you were in contempt already, the other said let's wait till a full discovery and decide.

 

[N6BY]

Please...not the 'poor little Tivo' bit again...this ain't 'poor little Tivo'...

In a few months it's looking like it will be 'poor little Dish'.

I'm not taking sides here, I'm just predicting the outcome of this lengthy battle.

 

[jacmyoung]

In a few months it's looking like it will be 'poor little Dish'.

I'm not taking sides here, I'm just predicting the outcome of this lengthy battle.

Interesting, take sides first, then claim not taking sides

Below I quote Judge Folsom during the 9/4/08 hearing I am basing my above wild theory on:

THE COURT: WHAT IS THE STATUS OF THE DELAWARE ACTION?

MR. MCELHINNY: THE DELAWARE ACTION IS PENDING. IT HAS A MOTION TO DISMISS PENDING.

THE COURT: I GUESS I FIND MYSELF…

After the hearing he could have communicated with the DE judge, and of course if so the DE judge could have said he was not going to dismiss the case, rather transfer it to you, and BTW TiVo complained they did not have a full discovery yet, what do you think Judge Folsom? Let TiVo have that full discovery? Later Judge Folsom ordered the full discovery.

 

[Mainer_Ayah]

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.

I simply posted that because in a previous post you mentioned that you were not familiar with the term. I thought that if you saw it in the context of a CAFC rule it might help you recall next time. Just trying to help educate.

 

[vampz26]

In a few months it's looking like it will be 'poor little Dish'.

I'm not taking sides here, I'm just predicting the outcome of this lengthy battle.

I'm afraid that after seeing these flagrant violations of dishnetworks right to a fair trial, that demise is inevitable.

I mean, once the goverenment makes up its mind, you disappear. Hence the root cause of a corrupt system.

Its becoming fairly obvious that charlie ticked off some pretty important people, I mean, D* hasn't been touched by any of this.

 

[rockymtnhigh]

I simply posted that because in a previous post you mentioned that you were not familiar with the term. I thought that if you saw it in the context of a CAFC rule it might help you recall next time. Just trying to help educate.

And I appreciated you posting that; my brain was so fried today I couldn't even think about such things as rules of civil procedure.

 

[jacmyoung]

I simply posted that because in a previous post you mentioned that you were not familiar with the term. I thought that if you saw it in the context of a CAFC rule it might help you recall next time. Just trying to help educate.

Sorry forgot to say it, thank you for the education. I learned a great deal and read the rules very carefully.

Apparently you already knew the rules, therefore when you said the appeals court could find E*'s appeal frivolous, it was misleading. Because according to the rules you already knew, TiVo must separately motion the appeals court for frivolous appeal, before you would declare the appeals court could possibly rule the E* appeal frivolous or not.

I am not aware TiVo had filed such motion to the appeals court. Maybe they will, if so then you can tell us such possibility may exist, but not before TiVo files such motion.

 

[jacmyoung]

...Its becoming fairly obvious that charlie ticked off some pretty important people, I mean, D* hasn't been touched by any of this.

When you refuse to play by the rule most analysts, companies and Judge Folsom, even most posters here have accepted, of course you will tick off people.

I am talking about the rule that Charlie should settle and work with TiVo, not the rules established by the appeals court on the issue of violation of an injunction against further infringement.

The question is, should a judge violate the court own legal standards in order to teach someone a lesson how to follow the generally accepted business rules?

 

[vampz26]

When you refuse to play by the rule most analysts, companies and Judge Folsom, even most posters here have accepted, of course you will tick off people.

I am talking about the rule that Charlie should settle and work with TiVo, not the rules established by the appeals court on the issue of violation of an injunction against further infringement.

The question is, should a judge violate the court own legal standards in order to teach someone a lesson how to follow the generally accepted business rules?

Doesn't matter...

You've already said the judge is biased.

I've already stated the system is flawed.

Regardless od the terminology, we both essentially agree.

However in this case, there is a level of control in place that allows for bias, exploits the flaws, and it pretty much has nothing to do with law at this point.

Charlie didn't play golf with the right politician...

 

[N6BY]

I'm afraid that after seeing these flagrant violations of dishnetworks right to a fair trial, that demise is inevitable.

I mean, once the goverenment makes up its mind, you disappear. Hence the root cause of a corrupt system.

I don't think its entirely due to a corrupt system. Part of the problem is that technology has become so complex that in order to be fair to both parties, juries and judges would have to be (in this case) computer programmers and electronic engineers.

Its becoming fairly obvious that charlie ticked off some pretty important people ....

Especially Judge Folsom and Mr. Rogers!

 

[Greg Bimson]

Its becoming fairly obvious that charlie ticked off some pretty important people, I mean, D* hasn't been touched by any of this.

TiVo attempted to enter into a partnership to build DISH/SATS DVR's with TiVo, even providing a prototype. DISH/SATS instead decided to build their DVR's in house. Therefore, there has never been a business arrangement between DISH/SATS and TiVo.

DirecTV has had an agreement with TiVo for I believe about ten years. It's awful hard to sue a partner when there is a no-litigation clause in the agreement.

I hate to point out the obvious, but there is no conspiracy theory.

 

[jacmyoung]

Just read E*'s 6/3/09 emergency motion to stay the order, a very powerful piece. Most issues had been discussed in this thread already. Only need to point out two things:

First, from the thoroughness of its motion, only one day after Judge Folsom's ruling, E* clearly had been planning for such likely occasion. They knew Judge Folsom did not like them and would likely rule against them. They were waiting for it and made a full run at it in a very short time frame. So any notion that TiVo folks might come in here try to get Charlie to shake in his boots is futile.

Secondly, E* had demonstrated by case law and the Supreme Court's decision that an overly-broad injunction can actually be challenged in a contempt proceeding, even if it was not challenged in the previous appeal. But of course E* also made it clear E* did not have to challenge it at all, the injunction clearly limited the second disabling order to the "Infringing Products," not anything that was not infringing products.

 

[vampz26]

I don't think its entirely due to a corrupt system. Part of the problem is that technology has become so complex that in order to be fair to both parties, juries and judges would have to be (in this case) computer programmers and electronic engineers.

Especially Judge Folsom and Mr. Rogers!

Agreed. We need a better system yo handle the tech issues.

And thanx for pointing out Folsom's bias. That's one of the major flaws I've been talking about.

 

[jacmyoung]

Agreed. We need a better system yo handle the tech issues...

I respectfully disagree

If such is a requirement, the judges and the juries will have to be experts in fire arms, psychology, computer language, forensic science, DNA fingerprinting, auto collision, biology, philosophy...

Want to waiting for that to happen?

 

[vampz26]

TiVo attempted to enter into a partnership to build DISH/SATS DVR's with TiVo, even providing a prototype. DISH/SATS instead decided to build their DVR's in house. Therefore, there has never been a business arrangement between DISH/SATS and TiVo.

DirecTV has had an agreement with TiVo for I believe about ten years. It's awful hard to sue a partner when there is a no-litigation clause in the agreement.

I hate to point out the obvious, but there is no conspiracy theory.

Lol...

Scrap the urban legend, ok?

But instead look in the archives of this very forum. D* DUMPED tivo all together in favor of their own home grown product causing one of many Tivo stock crashes. D* also had to swallow many original directv HD tivos only monthes after their release because D* announced their big '100 channel' mpeg4 HD plan rendering the HD tivo obsolete after less than a year on the market, AND they terminated their relationship with tivo in order to develope their own DVR which sits in peoples homes now, unmolested, as we speak.

Conspiracy? No...REALITY!

I hate to point out the obvious, but you need to get your head out of them legal books and see some of this reality!

And whatever little 'agreement' D* and Tivo have may be a little of both!

Read up, then get back to me.

 

[vampz26]

I respectfully disagree

If such is a requirement, the judges and the juries will have to be experts in fire arms, psychology, computer language, forensic science, DNA fringerprinting, auto collision, biology, philosophy...

Want to waiting for that to happen?

Like I said, when pointing out the flaws, I have no greater ally.

But you are correct, yes...all those entities need some level of expertise for a trial to be truly fair. Ignorance is too easily manipilated in the courtroom on many levels.

As for waiting? Yes...true reform may never happen, but that doesn't make it any less in the wrong.

 

[N6BY]

I respectfully disagree

If such is a requirement, the judges and the juries will have to be experts in fire arms, psychology, computer language, forensic science, DNA fingerprinting, auto collision, biology, philosophy...

Want to waiting for that to happen?

I agree it won't happen anytime soon . Using history as a guide, necessary changes are made only after a significant catastrophe (like we are finally getting changes and reforms to our financial system as a result of the recent economic mess).

But we really do need 'expert' judges and juries for specialized cases like Tivo vs Dish.

I have no idea about the level of education of the original eastern Texas jury in this case. But to be fair I think there should be minimum juror competency requirements in the subject of the litigation. You don't want the future of multi-billion dollar companies decided by, for example, a juror who works the third shift at a fast food restaurant after dropping out of high school.

Some would argue that complex technology issues are adequately handled by 'expert witnesses'. But what good do they do if the jury or judge does not understand their testimony?

Trial procedures originating from 230+ years ago are no longer appropriate for deciding advanced technology disputes. I think this 5 year legal mess we are discussing is a prime example.

 

[jacmyoung]

Let's agree on something, most of the posters here would consider themselves more technically and legally inclined than the average jury pool? Have we agree on any verdict after over a year of debate?

Have any of you being in a room full of engineers? If so you should know they can't agree on anything even though they work for the same company. Now imagine the engineers are actaully representing different interests, and expecting them to agree on a verdict of any kind is a pipe dream.

The job of experts is to disagree, to challenge one another, not to quickly produce an agreement. It is precisely this reason the jury are more suited for those who know little of the subject so they are more willing to listen to the testimonies without injecting their own opinions, if you expect them to be fair, and reach a conclusion in less than a few weeks hopefully.

 

[Greg Bimson]

Lol...

Scrap the urban legend, ok?

Here:

You probably remember that TiVo won a $74 million jury verdict in this case back in April, when the Texas panel apparently agreed with the DVR pioneer that Echostar (who also had access to an early TiVo prototype box) had violated its so-called "Time Warp" patent.

Read the transcript. Read the coverage. Type this - TiVo Echostar prototype - in a search engine. While I am being accused of posting "urban legends" even though what I state is true, I can only lead a mule to water.

But instead look in the archives of this very forum. D* DUMPED tivo all together in favor of their own home grown product causing one of many Tivo stock crashes. D* also had to swallow many original directv HD tivos only monthes after their release because D* announced their big '100 channel' mpeg4 HD plan rendering the HD tivo obsolete after less than a year on the market, AND they terminated their relationship with tivo in order to develope their own DVR which sits in peoples homes now, unmolested, as we speak.

I'd love to see where DirecTV "terminated" their relationship with TiVo. DirecTV might have no longer gave TiVo a task order to build more TiVo's for DirecTV. But as I recall, DirecTV still had to pay a monthly fee to TiVo for customers that used the DirecTV/TiVo DVR. That fee would be governed by an agreement by the two parties.

So as I said, DirecTV and TiVo have had an agreement for about ten years.

I hate to point out the obvious, but you need to get your head out of them legal books and see some of this reality!

And whatever little 'agreement' D* and Tivo have may be a little of both!

Read up, then get back to me.

Reading is overrated. Obviously.

 

[jacmyoung]

Depending on how one interprets what one reads too.

DirecTV initially had the agreement with TiVo because they did not have reliable and functional DVRs, needed TiVo to fill the void, but also to avoid litigation. Once their own DVRs matured DirecTV wasted no time to move their TiVo base to their own DVRs. They did not want to pay TiVo the license fee, had they wanted to pay, they would not have shut down all those MPEG2 HD channels. DirecTV has plenty of bandwidth to keep those channels unitl the next generation of new MPEG4 TiVo DVRs becomes available.

The new agreement with TiVo also aims to avoid litigation, but the new DVRs are delayed, meaning DirecTV does not have to pay TiVo any license fee while TiVo may not sue them.

Neither E* nor D* wants to pay TiVo license fees. Each takes different path to achieve the same goal. Interestingly though whether D* can continue with trying to pay TiVo as little as they can, may depend on E*'s ability to prove in the court they do not have to license from TiVo.