TIVO vs E*

[tivonomo]

That preliminary injunction was shot down by the appeals court.

I find it interesting that you argue something alternate to the point that doesn't matter to the discussion.

You were clearly proven wrong. The injunction was shot down, yes, but the point is that the courts still applied the four factor test for injunctions. There are literally thousands of other links that show that you are wrong.

Maybe you are being argumentative with me because my argument is for TiVo. As a disclosure, I shorted TiVo for years (hence my name I'm known by is tivonomo) so I think that makes me more objective than most in this debate.

 

[rockymtnhigh]

Guys, we are not going to play these games, over and over. If you flame; if you incite; if you challenge staff decisions, you will not be allowed to play. Simple.


End of discussion. Move on.

 

[Thomas22]

You were clearly proven wrong. The injunction was shot down, yes, but the point is that the courts still applied the four factor test for injunctions. There are literally thousands of other links that show that you are wrong.

You are correct and I was wrong about the four factor test. However, one of the pre-trial rituals is the Markman hearing in which the claims construction is determined. Each judge determines his own definitions. Even if by some miracle the new judge comes up with identical definitions as Judge Folsom did, there is still the determination to be made of whether the DVR in question meets all eleven or so elements of the claim. By the time the Markman hearing is concluded, things are pretty far along anyway and a judge is going to leave it to a jury.

 

[Mainer_Ayah]

So.... I guess we are all in agreement that a preliminary injunction can in fact be brought to bear in a new case when the 4 factor test is successfully applied. I see there are about 26,000 reasons why this is the case: [ame="http://www.google.com/search?q=preliminary+injunctions++4+factor+test&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-USfficial&client=firefox-a"]preliminary injunctions 4 factor test - Google Search[/ame]

 

[tivonomo]

You are correct and I was wrong about the four factor test. However, one of the pre-trial rituals is the Markman hearing in which the claims construction is determined. Each judge determines his own definitions. Even if by some miracle the new judge comes up with identical definitions as Judge Folsom did, there is still the determination to be made of whether the DVR in question meets all eleven or so elements of the claim. By the time the Markman hearing is concluded, things are pretty far along anyway and a judge is going to leave it to a jury.

Claims construction is irrelevant to the four factor test. The four factor test is only based on a likelihood of success and does not rely upon claim construction that has been determined by Folsom's court and reviewed by the CAFC... and don't forget upheld by the patent re-exam.

Of course, there is a chance that they could prevail by some miracle and succeed in a jury decision but the likelihood of success used for the 4 factor test should be very high if E* doesn't succeed in their case.

 

[Thomas22]

Claims construction is irrelevant to the four factor test. The four factor test is only based on a likelihood of success and does not rely upon claim construction that has been determined by Folsom's court and reviewed by the CAFC... and don't forget upheld by the patent re-exam.

Of course, there is a chance that they could prevail by some miracle and succeed in a jury decision but the likelihood of success used for the 4 factor test should be very high if E* doesn't succeed in their case.

There has to be some kind of baseline before determining the likelihood of success in a new lawsuit. There can't be a common baseline or predicted common outcome without common definitions. There is no guarantee that claims construction would be the same in a new trial. There is also the chance that a new trial might result in the jury invalidating the patent. The new plaintiff might raise substantial issues as to patent validity. Anyway, the patent is being reexamined. Judges tend to table new patent lawsuits while a reexamination is in progress.

 

[riffjim4069]

But E* was prepared not to settle. If E* loses the next round, it will not destroy it, if E* wins the next round, it will more likely destroy TiVo.

That's the same approach E* has taken with VOOM; it may be far less clostly to litigate matters in the courts than to do business ethically and above the board. While I was never a big fan of the Tivo patents the USPTO has spoken, the courts have ruled, and the appeals process will soon uphold the contempt order to disable infringing DVRs. Unfortunately for E*, the days of "best customer" licensing (pricing) have long since passed and Tivo will indeed extract a pound of flesh from E* in order to keep 3-4 million DVRs from being downgraded.

Additionally, I agree with Mainer...it is Charlie Ergen who has refused to settle with Tivo and the shareholders have every right to go after Mr. Ergen if they feel his actions were not in the best interest of shareholders. At this stage of the game if I were Tivo I would shutdown the DVRs and let the chips fall where they may. While this may not "destroy" E*, you need to remember Dish Network will soon be closing the books on their 5th consecutive quarter in which they've lost customers. You can bet your sweet bippy the shareholders are growing concerned - very concerned.

 

[jacmyoung]

Stop lying! I never said there was a second contempt ...

If you simply couldn't even tell who I was talking to, what is there to argue?

 

[jacmyoung]

...At this stage of the game if I were Tivo I would shutdown the DVRs and let the chips fall where they may...

TiVo is doing it right now if you have not noticed. TiVo's responses asking the appeals court to lift the stay of the injunction are just that, trying to shut down the DVRs. Had TiVo waited for your input they would have passed the appeals court deadline already

Just to make sure we all realize this, currently there is NO injunction order in effect. On 6/3, one day after Judge Folsom issued his order, the appeals court temporarily stayed the injunction order to keep the status quo, i.e. to stop the E* DVRs from being disabled of their DVR functions.

This temporary stay was not based on the merits, only to keep the DVRs from being disabbled. The next thing for the appeals court to do is to determine if the stay of order will last for the duration of the appeal, that decision will be based on the merits. E* must demonstrate they are very likely to succeed on merits in order to have the appeals court rule in E*'s favor on the stay issue.

 

[jacmyoung]

Now that I went back to read it again, it appears the stay has been granted already, there are two orders below, I know the first one was granted on 6/3/09. Not sure when did the appeals court issue the second one:

TEMPORARY STAY ORDER
UPON CONSIDERATION of Defendants' EMERGENCY MOTION FOR A STAY PENDING APPEAL OF THE DISTRICT COURT'S PERMANENT INJUNCTION, filed on June 3, 2009, it is ORDERED that:

The district court's injunction, entered on June 2, 2009, will be temporarily stayed pending receipt of TiVo's response and Defendants' reply thereto. This temporary stay is not based on a consideration of the merits, but is granted to preserve the status quo while the Court considers the parties' papers.

STAY ORDER
UPON CONSIDERATION of the EMERGENCY MOTION FOR A STAY PENDING APPEAL OF THE DISTRICT COURT'S PERMANENT INJUNCTION, filed on June 3, 2009, it is ORDERED that:

The motion is GRANTED, and the district court's injunction, entered on June 2, 2009, will be stayed pending resolution of the present appeal.

THIS IS MOST LIKELY INACCURATE AS THE SECOND PART HAS NOT BEEN CONFIRMED.

 

[dfergie]

Guys, keep things civil Ok? Good discussion is welcome with out attacks etc... Thanks...

 

[Mainer_Ayah]

If you simply couldn't even tell who I was talking to, what is there to argue?

Where is the other contempt? And as I tried to explain to Mainer, there will not be one so folks should stop thinking about it.

I know who you were talking to, but I also can see who you were referring to. As I said, I never said that there was another contempt, but you seem to want to spin things differently.

 

[Mainer_Ayah]

Now that I went back to read it again, it appears the stay has been granted already, there are two orders below, I know the first one was granted on 6/3/09. Not sure when did the appeals court issue the second one:

Could you share the source of those quotes with us please? In checking the appeals court docket, there is no such entry. Here is the complete docket:

[FONT=Arial, Helvetica, sans-serif] Case Details

U.S. Court of Appeals for the Federal Circuit


TIVO V ECHOSTAR

2009-1374

[/FONT]

Click Here for Briefs

Click Here for Rehearings


Click Here To Search Again

The following documents, filed after 8/13/07, are available for download:
official caption, entry of appearance, certificate of interest.
No other case documents are available electronically.
​

Date History [SIZE=-1]8/17/2009[/SIZE] [SIZE=-1]Due [SIZE=-1] BLUE BRIEF[/SIZE][/SIZE] [SIZE=-1]/ / [/SIZE] [SIZE=-1]Appellant Principal Brief Filing Date[/SIZE] [SIZE=-1]/ / [/SIZE] [SIZE=-1]Appellee or Cross Appellant Principal Brief Filing Date[/SIZE] [SIZE=-1]/ / [/SIZE] [SIZE=-1]Appellant Reply Brief Filing Date[/SIZE] [SIZE=-1]/ / [/SIZE] [SIZE=-1]Cross Appellant Reply Brief Filing Date[/SIZE] [SIZE=-1]/ / [/SIZE] [SIZE=-1]Appendix Filing Date[/SIZE] [SIZE=-1]/ / [/SIZE] [SIZE=-1]Disposition: ; by [/SIZE] [SIZE=-1]/ / [/SIZE] [SIZE=-1]Mandated on[/SIZE] [SIZE=-1]>>[/SIZE] [SIZE=-1]Please Note: The briefs above are only the most current. << [/SIZE] MOTIONS AND OTHER ENTRIES >> [SIZE=-1] Please Note: Motions are listed first. Entries are listed last.[/SIZE]<< [SIZE=-1]6/10/2009 [/SIZE] [SIZE=-1]MOTION: Entry 20 :by Other - Motion for Leave to File an amicus Curiae Response In Support of Plaintiff-Appellee. [Response submitted with motion.] SERVICE : by Mail on 6/10/2009 [/SIZE]
[SIZE=-1]6/3/2009 [/SIZE] [SIZE=-1]MOTION: Entry 4 :by Appellants - Emergency Motion for a Stay pending Appeal of the District Court's Permanent Injunction (with Confidential and Nonconfidential exhibits). SERVICE : by Mail on 6/3/2009 [/SIZE] [SIZE=-1] . [/SIZE] [SIZE=-1]REPLY 1: 6/10/2009 , Entry # 19 [/SIZE] [SIZE=-1] . [/SIZE] [SIZE=-1]REPLY 2: 6/15/2009 , Entry # 22 [/SIZE] [SIZE=-1] . [/SIZE] [SIZE=-1]REPLY 3: 6/17/2009 , Entry # 25 [/SIZE]
>> Entries for Case Number: 2009-1374 << [SIZE=-1]Entry 26 : [/SIZE] [SIZE=-1]6/18/2009 : Entry of Appearance for Tina E. Hulse as counsel on behalf of appellants, Dish Network Corporation, et al. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/18/2009[/SIZE]
[SIZE=-1]Entry 24 : [/SIZE] [SIZE=-1]6/18/2009 : Final Notice of Docketing issued to the parties. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Court on 6/18/2009[/SIZE]
[SIZE=-1]Entry 23 : [/SIZE] [SIZE=-1]6/17/2009 : Notice of Appeal of the appellants, EchoStar Corporation, et al., and certified docket entries were received from the U.S. District Court for the Eastern District of Texas. [/SIZE]
[SIZE=-1]Entry 21 : [/SIZE] [SIZE=-1]6/10/2009 : Appellant EchoStar et al's letter apprising court that they will file a reply to appellee's opposition. (sent to ssa) [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Hand on 6/10/2009[/SIZE]
[SIZE=-1]Entry 18 : [/SIZE] [SIZE=-1]6/8/2009 : Certificate of Interest for defendants-appellants, EchoStar Corporation, et al. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/8/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.08.09 COI DISH ECHOSTAR).PDF [/SIZE]
[SIZE=-1]Entry 17 : [/SIZE] [SIZE=-1]6/8/2009 : Entry of Appearance for Erik R. Puknys as counsel on behalf of defendants-appellants, EchoStar Corporation, et al. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/8/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.08.09 EOA PUKNYS).PDF [/SIZE]
[SIZE=-1]Entry 16 : [/SIZE] [SIZE=-1]6/8/2009 : Entry of Appearance for Don O. Burley as counsel on behalf of defendants-appellants, EchoStar Corporation, et al. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/8/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.08.09 EOA BURLEY).PDF [/SIZE]
[SIZE=-1]Entry 15 : [/SIZE] [SIZE=-1]6/8/2009 : Entry of Appearance for Donald R. Dunner as principal counsel on behalf of defendants-appellants, EchoStar Corporation, et al. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/8/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.08.09 EOA DUNNER).PDF [/SIZE]
[SIZE=-1]Entry 9 : [/SIZE] [SIZE=-1]6/3/2009 : Entry of Appearance for Thomas Saunders as of counsel on behalf of the appellee, TiVo, Inc. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.309 EOA SAUNDERS).PDF [/SIZE]
[SIZE=-1]Entry 8 : [/SIZE] [SIZE=-1]6/3/2009 : Entry of Appearance for Edward C. DuMont as of counsel on behalf of the appellee, TiVo, Inc. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.3.09 EOA DUMONT).PDF [/SIZE]
[SIZE=-1]Entry 7 : [/SIZE] [SIZE=-1]6/3/2009 : Entry of Appearance for Seth P. Waxman as principal counsel on behalf of the appellee, TiVo, Inc. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.3.09 EOA WAXMAN).PDF [/SIZE]
[SIZE=-1]Entry 6 : [/SIZE] [SIZE=-1]6/3/2009 : Letter of counsel for the appellee, Tivo, Inc. in reference to the Emergency Stay Motion. (sent to ssa) [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE]
[SIZE=-1]Entry 5 : [/SIZE] [SIZE=-1]6/3/2009 : Ordered: TiVo Inc. is directed to respond to the motion for stay no later than noon on June 10, 2009. District Court's order is temporarily stayed, pending this court's receipt of the response and the court's consideration of the papers submitted. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Court on 6/3/2009[/SIZE]
[SIZE=-1]Entry 3 : [/SIZE] [SIZE=-1]6/3/2009 : Preliminary Notice of Docketing issued to the parties. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Court on 6/3/2009[/SIZE]
[SIZE=-1]Entry 2 : [/SIZE] [SIZE=-1]6/3/2009 : Official Caption. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Court on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.3.09 CAPTION).pdf [/SIZE]
[SIZE=-1]Entry 14 : [/SIZE] [SIZE=-1]6/3/2009 : Certificate of Interest for the appellee, TiVo, Inc. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.3.09 COI TIVO).PDF [/SIZE]
[SIZE=-1]Entry 13 : [/SIZE] [SIZE=-1]6/3/2009 : Entry of Appearance for Perry Goldberg as of counsel on behalf of the appellee, TiVo, Inc. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.3.09 EOA GOLDBERG).PDF [/SIZE]
[SIZE=-1]Entry 12 : [/SIZE] [SIZE=-1]6/3/2009 : Entry of Appearance for Christine W.S. Byrd as of counsel on behalf of the appellee, TiVo, Inc. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.3.09 EOA BYRD).PDF [/SIZE]
[SIZE=-1]Entry 11 : [/SIZE] [SIZE=-1]6/3/2009 : Entry of Appearance for Andrei Iancu as of counsel on behalf of the appellee, TiVo, Inc. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.3.09 EOA IANCU).PDF [/SIZE]
[SIZE=-1]Entry 10 : [/SIZE] [SIZE=-1]6/3/2009 : Entry of Appearance for Morgan Chu as of counsel on behalf of the appellee, TiVo, Inc. [/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]SERVICE : by Mail on 6/3/2009[/SIZE] [SIZE=-1].[/SIZE] [SIZE=-1]DOC : : Tivo 2009-1374 (6.3.09 EOA CHU).PDF [/SIZE]

 

[Greg Bimson]

Lmao!

Read the link in my sig regarding 'argument from ignorance' and read how you just now have been properly schooled.

Personal attack noted within a figment of imagination.

Here is your challenge. Google it yourself. There are enough links out there for you to read and come to your own conclusions.

I've provided many.

Go back and look up the old direct HD tivo. Look when it was released and look when D* announced their BIG plan.

Look at the tivo stock price history. I remember it taking a dive to 4 dollars a share after D* punted them to make their own mpeg4 dvrs.

TiVo's stock price has recovered nicely.

Look at the DISH stock price history. It is no better than it was 10 years ago, is now at half of its value from the 52-week high, and at more than 80 percent off its all-time high.

Google it yourself. Do your research, and then get back to me. Until you do, you don't have a dog in the fight. You've got about 5 years of history to go thru because from the sounds of it, you don't remember.

Another personal attack noted.

I remember just fine. I don't revise history.

TiVo's stock has been at $4 during the past year and again in early 2005. That probably doesn't correlate to DirecTV's MPEG4 plans.

 

[jacmyoung]

I know who you were talking to, but I also can see who you were referring to. As I said, I never said that there was another contempt, but you seem to want to spin things differently.

I never said you said there was another contempt, someone else said it and I was asking him, not you.

 

[jacmyoung]

Could you share the source of those quotes with us please? In checking the appeals court docket, there is no such entry. Here is the complete docket:

I found it in the E* emergency motion doc you posted on your site, attached to it are two separate stay orders undated, the first is the temp stay, the next is the stay.

We know the temp stay was issued on 6/3/09, it is not sure when that stay order was issued.

 

[rockymtnhigh]

Personal attack noted within a figment of imagination.I've provided many.TiVo's stock price has recovered nicely.

Look at the DISH stock price history. It is no better than it was 10 years ago, is now at half of its value from the 52-week high, and at more than 80 percent off its all-time high.Another personal attack noted.

I remember just fine. I don't revise history.

TiVo's stock has been at $4 during the past year and again in early 2005. That probably doesn't correlate to DirecTV's MPEG4 plans.

Greg -- ENOUGH. Vampz, ENOUGH.

I swear it is like herding cats with you guys. Or maybe teenage girls bickering over something stupid.

Act like adults, or do not post in this thread.

 

[vampz26]

Personal attack noted within a figment of imagination.I've provided many.TiVo's stock price has recovered nicely.

Look at the DISH stock price history. It is no better than it was 10 years ago, is now at half of its value from the 52-week high, and at more than 80 percent off its all-time high.Another personal attack noted.

I remember just fine. I don't revise history.

TiVo's stock has been at $4 during the past year and again in early 2005. That probably doesn't correlate to DirecTV's MPEG4 plans.

Keep going...you've not done enough research and are trying to force a conclusion. Not good.

No personal attack at all. Its just that your attempts at forcing every conversation into recognizing strictly 'the letter of the law' are getting a bit tiresome. I'm trying to help you think outside the box a bit.

Here. Google the D* HD tivo, the original. I believe it was the HD HD or HOUR 10-250. Than look for the earliest press releaset where D* announced their now legendary '100 channel' business plan. Now look at that time frame and correllate it with tivos stock price.

Some of us where here in this forum, or posting in others during that timeframe and remember it. What were you doing?

Anyway, I am curious, what tv service do you sub too? Just so I know where you stand.

Thanks.

 

[jacmyoung]

...TiVo's stock has been at $4 during the past year and again in early 2005. That probably doesn't correlate to DirecTV's MPEG4 plans.

I recall TiVo's stocks tracked this litigation much more so than the E* stocks.

E* stocks seemed to have a lot to do with E*'s own DBS business performance than anything else.

But TiVo's poor business performance has been too obvious for the past two years, over a million and a half sub loss out of what a little over 4 million? But most significantly the latest 2 quarters were the first quarters they began to lose their core sub base.

My above numbers may not be very accurate since I do not track them closely.

 

[vampz26]

Greg -- ENOUGH. Vampz, ENOUGH.

I swear it is like herding cats with you guys. Or maybe teenage girls bickering over something stupid.

Act like adults, or do not post in this thread.

Sorry rock, missed this...I justed needed to clarify, that's all. Sorry.