The problem is that your argument and DISH/SATS argument aren't the same, but I'll be happy to counter-point:
Element 1: Of course there is some "temporary storage location". Once the incoming transponder is parsed to only keep the channel being requested, that data has to go somewhere before being written to disk. Probably some kind of buffer. DISH/SATS did not say they do not have a temporary storage location.
Yes E* did say the incoming A/V data are no longer temporarily stored anywhere rather stored directly onto the hard drive.
They did mention they have a buffer, which I can assume to be temporary storage.
No, just like the words "buffer" and "buffers" are used in the elements 4 and 6 in the TiVo's software claims, a buffer is not the same as a "temporary storage", in fact the court had different definition for each term. If they are the same, they should not be defined in two different terms in the patent claims.
A buffer provides a very very short data retaining step that can disappear in a millisecond. The "temporary storage" is achieved by that index file, a physical file created to store the A/V index information before the A/V streams are permanently stored onto the hard drive. During trick plays, the commands the users issued will be matched to the index information in that index file, by doing so the CPU is not overly taxed. The index file (temporary storage) does not go away, even though the word "temporary" is used.
But the point is, the "temporary storage" is not the same as a "buffer", because the court issued separate definitions for them. E* can still have buffers, which may still meet Element 4, but no temporary storage means Element 1 is not met.
Elements 5 and 8: Just like you, DISH/SATS has stated that the software is no longer "automatically flow controlled". However, the interpretations of the claims in this case defines "automatically flow controlled" as "self-regulating". I suspect it is the component of this element where Judge Folsom has questions which needs answers, from the evidence presented so far.
The question whether "automatic flow control" or "self-regulating" was there was answered when TiVo proved E*'s old design used that so called "media switch", the function of that media switch was to provide such automatic flow control, or self-regulation.
I beleive you agreed if the media switch is in fact removed, the hardware claims will no longer be infringed, for the exact same reason, because the media switch is gone, the function of which it serves--automatic flow control, is also gone.
I'll try, but mine is more slanted towards what I believe is the rule of law...
There are two points where TiVo is trying to have DISH/SATS found in contempt: violations of the disable order and of the stop continuing to infringe order. I believe they are mutually exclusive, i.e., finding contempt for failing to disable would not have an impact whether or not the modifications continue to infringe. TiVo does not want the outcome that DISH/SATS no longer infringes. TiVo now MUST get a ruling that DISH/SATS continues to infringe, even if Judge Folsom goes against them and must appeal to the Supreme Court, or they will not get what they want: an ongoing licensing contract, royalties for the patent.
TiVo of course wanted to separate the disabling order from the first order (stop additional infringement by the sale, make...), but TiVo had failed on that, as I pointed out and will repeat:
The disabling order specifically said to
disable the DVR functions...from the Infringing Products. If those DVRs are found no longer infringements, of course you cannot say they are "infringing Products" anymore, and therefore the disabling order no longer applies to them.