TIVO vs E*

[jacmyoung]

Jacmyoung, since you refused to answer questions at the other dbs forum, I'd like to ask you to clear up some misinformation that you posted. Please answer the following questions. If you do not answer, I will assume that you were intentionally misleading other posters.

You can assume all you want, it is your right to do so. I on the other hand do not assume what your intention is, because I do not care who you are, what you do, what is your background. Your intention, or the intention of anyone else is irrelevant to this case. Nor is my intention for that matter. I have no illusion that anything I say could possibly improve your perception of me, therefore I have no interest to even try.

I have the right to decide how I want to answer any questions, or not to answer any questions, if I do not think it is relevant or it has no bearing on this case.

And BTW, may I suggest that you do not come here to advertise a competitor's site, well at least not too often. It is not a very polite thing to do. This one time is fine, if you need that to make your point

Question: If you physically remove the hard drive, is the physical memory for the "circular buffer" still present in the DVR?

Of course not, what is your point? That E* must remove the hard drives from those DVRs? Did TiVo ask to put in the injunction that Judge Folsom ordered the hard drives removed from those DVRs? If not, TiVo cannot now complain that E* did not remove those hard drives, nor anything associated with the hard drives.

Question: What is the specific patent number that TiVo must ask Judge Folsom to declare non-infringingi?

My point was, usually in a declaratory judgement case, there is no counterclaim involved as part of the response to the declaratory suit. The defendants instead file another new lawsuit alleging the plaintiffs of infringement, often in a different court. It then becames a question whose court has the jurisdiction.

In this case TiVo could have filed such suit, but as E* said in its latest briefing before the DE judge, TiVo had all the time to do so, to file a new action alleging infringement by the new design, but TiVo did not do so, and still is not doing so. Therefore TiVo may not now complain that the E* suit stays at the DE court. Had TiVo filed their own suit in the TX court say a few days after the E*'s DE case was filed, TiVo would have a lot to argue about, but TiVo did not. Instead TiVo tried to dismiss the E* case, but failed.

Want the case in the TX court? File a new action of your own in the TX court, it is not so hard. What was TiVo waiting for?

Question: Please provide the text of specific instructions given by Judge Folsom

On 9/4/08, Judge Folsom told E* lawyer that it was unfair for E* not to tell him that E* was going to file a new action in the DE court, he said you want fairness? [then tell me about it first]...

And now everything happened in the DE court, E* has been the very first to file before Judge Folsom to inform him, likewise E* also told the DE judge they would inform him of all the development in the TX court.

 

[jacmyoung]

I'm just going to quote you, and leave it at that. I will let the gentle reader find the sheer humor in this quote.

That was my punchline, the gentle reader had already read it, and had already agreed or disagreed if that TiVo's argument was comical or not. You were too late

Please come up with your own punchline.

 

[jacmyoung]

Wow, you really are...nevermind, I don't want to get in trouble with my first post. Let's just say "uninformed."

You are reading one poster who is goading Judge Folsom into ruling. It's a joke. He's playing a game. I know, it might be a little subtle for you to pick it up, what with your less-than-impeccable command of the English language and all.

A joke from someone who sounded like the biggest sour grape ever Are you even serious that Judge Folsom may be influenced by your "investor village" posts? Must be kidding me.

This is laughable. Let's see how their lack of a strategy has worked out:

1) Won a jury trial
2) Jury found willful infringement
3) Won the appeal
4) Won the Supreme Court non-decision
5) Collected $105 million

All 5 above was just a single win. In most cases the losing parties did not appeal, and simply paid and/or settled. In this case E* appealed all the way, and during the appeal, they were able to:

1) Defeat TiVo's treble and attorney fee request, despite the willful infringement verdict;
2) Get the appeals court to stay the injunction, and designed around the patent, and never had to disable those DVRs, and still do not have to;
3) Delayed the payment to TiVo by more than two years.

6) Patent was fully validated after first re-exam

And yet will likely be invalidated this second time due to new light as the USPTO stated.

7) About to win DE transfer back to TX

We will see. But the more important question is, why did you not dare to say:

8) About to win the contempt ruling?

.... They are raping Chuckles in legal fees, and losing hand over fist.

Who cares? It is not my money.

By the way, feel free to come over to investor's village. I'd just love to see how you do over there. I dare you.

You have no ability to even dare me because you did not even dare to say: "TiVo is about to win the contempt ruling."

BTW, after those latest massive filth spilled over there at your "village" may I suggest you watching out for Swine Flu

 

[vampz26]

You know, this thread is to the Tivo trial what pro-wrestling is to sports:

Mostly entertaining as opposed to anything with credibility.
Plenty of scripted dialogue and very exaggerated monologue.
A huge ego that is always trying to steal the entire show.
And most of all...plenty of nonsensical drama!

None of this really matters anyway. Tivo has nothing to win in this trial anyway but a few more borrowed years in business until the next guy builds the better mousetrap.

 

[jacmyoung]

And let me expand a little on the patent invalidation issue.

There was a story I posted earlier about after E*'s loss to TiVo in 06, E* refused to settle with Forgent, even though both TW and DirecTV chickened out and settled. E* defeated Forgent by convincing the jury that Forgent patent was invalid.

E* succceed that time because E* learned from the TiVo loss. During the TiVo trial, E* tried to do two things, both to argue that they did not infringe, and also that TiVo's patent was invalid.

That kind of argument was fine between lawyers and judges, but confused the jury. The jury were lay persons, they did not understand why you would try to argue you did not infringe, then argued again that the patent was not valid. Did you have things to hide or something? If you did not infringe, you did not infringe, why tried to attack the patent?

So in the next battle they decided to do one thing only, to prove the Forgent DVR patent was invalid, and the jury agreed and thrown out the Forgent case against E*. It was much simpler for the jury to understand that once the patent was invalid, the infringement issue was moot.

See the pattern? Now E* has this new suit to declare non-infringement. One of the most common ways to win such cases is to prove the patent is invalid.

E* never stopped researching prior patents to find evidence to prove that TiVo's patent was invalid, and they finally at the end of last year managed to do just that, to convince the USPTO to re-examine the TiVo patent for the second time, and the USPTO granted E*'s request, because according to the USPTO, the new evidence provided by E* did show substantial new light questioning the validity of the TiVo patent.

Now one can almost see this thing unfolding. It does not matter if this new DE case stays in the DE court, or gets transferred to the TX court, it will likely be a new jury trial. And you can bet E* will try to use the same strategy they used during the Forgent trial, to convince the jury that the TiVo patent is invalid. They have the evidence to do so, even the USPTO had agreed with E*'s evidence to re-examine the TiVo patent.

E* succeeded in doing so in the same TX court, with Forgent in 06, and even if the DE case will be transferred to the same TX court, the same game will be played with TiVo for this second time--to convince the jury that TiVo's two software patent claims are invalid.

And you know what, the USPTO's decision whether to invalidate the TiVo's two software patent claims will come out sooner than the new jury trial, if the USPTO indeed invalidates the patent, TiVo will not even be able to fight the new trial with E*. TiVo's only job will be to appeal the USPTO's decision.

 

[vampz26]

You know, this thread is to the Tivo trial what pro-wrestling is to sports:

Mostly entertaining as opposed to anything with credibility.
Plenty of scripted dialogue and very exaggerated monologue.
A huge ego that is always trying to steal the entire show.
And most of all...plenty of nonsensical drama!

None of this really matters anyway. Tivo has nothing to win in this trial anyway but a few more borrowed years in business until the next guy builds the better mousetrap.

...as if I couldn't have made my point any clearer...

 

[Thomas22]

according to the USPTO, the new evidence provided by E* did show substantial new light questioning the validity of the TiVo patent.

This appears to be another "wild claim" AKA "lie".

http://www.satelliteguys.us/dish-ne...-texas-another-patent-duel-3.html#post1717201

The USPTO acceptance of the Dish reexamination request does not contain one single occurrence of the word "light".

The USPTO said there was "a substantial new question". Well, Duh. There was a substantial new question the first time too. There is a substantial new question with every reexamination.

92% of reexamination requests are accepted. That means that in 92% of reexamination requests there is "a substantial new question". It's a rubber stamp. Paid the reexamination fee? Filled out the form right? Great. "Substantial new question". We'll get back to you.

The reexamination went to the examiner on March 25. Nothing has been heard back from the examiner yet.

Stop making stuff up.

 

[mike123abc]

Dish is succeeding on the important front... The DVRs are still working.

Dish is collecting $$ per DVR. A huge amount of money for a war chest to fight off TiVo and even pay them awards. The main goal is still being met... The DVRs are still working.

The lose the case... yet somehow the DVRs keep working.

The main goals of Dish:

1. Keep the DVRs working

2. Pay TiVo as little as possible

#1 is still working, and #2 is still true. Yes they paid TiVo a nice sum of cash, but less than the licensing would have been.

The main interest will be to see if Dish keeps meeting its objectives. The talk back and forth in here means nothing. It only matters to see if Dish can keep doing what it is doing until the patent gets overturned, Dish is ruled not infringing or the patent finally expires.

 

[jacmyoung]

This appears to be another "wild claim" AKA "lie".

http://www.satelliteguys.us/dish-ne...-texas-another-patent-duel-3.html#post1717201

The USPTO acceptance of the Dish reexamination request does not contain one single occurrence of the word "light".

Really?

...Thomason and Krause are now being viewed in a new light since the combination of Thomason and Krause was never considered during either the original examination or the previous reexamination proceeding.

...In the present instance, there exists an SNQ based on the existence of old art being viewed in a new light as noted above.

Thomason and Krause are both old art that is now being viewed in a new light by being in combination.

Should I go on? Who was making things up?

The USPTO said there was "a substantial new question".

Ok they said SNQ, not SNL, so what? Do you really see yourself making a killer arguement by insisting that the USPTO said "substantial new question" not "substantial new light?"

Well, Duh. There was a substantial new question the first time too. There is a substantial new question with every reexamination.

92% of reexamination requests are accepted. That means that in 92% of reexamination requests there is "a substantial new question". It's a rubber stamp. Paid the reexamination fee? Filled out the form right? Great. "Substantial new question". We'll get back to you.

Well Duh, you said yourself, among the 92% of reexaminations, 59% of them were invalidated in whole or in part, did you forget about that?

In this new reexamination, basically only one patent claim is in question anyway.

The reexamination went to the examiner on March 25. Nothing has been heard back from the examiner yet.

The USPTO granted the reexamination on 11/10/08, TiVo had two months to file a response, E* had another two months to file their response as an option. Why are you so impressed by the fact the USPTO has yet made the decision? You don't think the examiner goes fishing like Judge Folsom does?

Judge Folsom hasn't made his decision, 11 months after the TiVo's motion went to him, how does that impress you?

Stop making stuff up.

If you are so happy to say that, at least make sure do your own homework, and don't make things up yourself.

 

[Thomas22]

Transaction History Date Transaction Description

03-25-2009 Date Forwarded to Examiner

 

[Thomas22]

Really?
Should I go on? Who was making things up?

That is Dish speaking in their reexamination application. That's their words. It only went to the examiner a couple of weeks ago.

 

[jacmyoung]

That is Dish speaking in their reexamination application. That's their words. It only went to the examiner a couple of weeks ago.

No, I was quoting the 11/10/08 USPTO decision granting reexamination. Do your homework, please?

 

[jacmyoung]

...The talk back and forth in here means nothing...

In the context of how Judge Folsom will do, and how E* and TiVo will respond, yes, what we say matters nothing.

We are just expressing our viewpoints, like most things here at Satguys or any other boards. I don't think people should have any illusion that what we do here will have some profound impact on the companies or the courts.

Maybe some of the people do have such illusion, which was why they get bent out of shape. They take whatever said here too seriously.

 

[Thomas22]

Yep. They xeroxed the form Dish sent in. It works the same as judges rulings and facts and findings and conclusions of of law that parties send in to judges. The judges cut and paste. The text is proposed text which makes it easier on the beaurocrat/judge to cut and paste.

"Filled in the form correctly" ? "Paid the fee" ? Great. Substantial new question.

The reexamination went to the examiner 03-25-09. The office personnel rubber stamped the reexamination form back in November.

 

[jacmyoung]

Yep. They xeroxed the form Dish sent in. It works the same as judges rulings and facts and findings and conclusions of of law that parties send in to judges. The judges cut and paste. The text is proposed text which makes it easier on the beaurocrat/judge to cut and paste.

"Filled in the form correctly" ? "Paid the fee" ? Great. Substantial new question.

The reexamination went to the examiner 03-25-09. The office personnel rubber stamped the reexamination form back in November.

Are you trying to tell us judges' rulings are all "stuff made up" and simply rubber stamped?

Well it is a great concept, but then what? Those rulings shall not matter? Should the Judge Folsom's injunction order matter if it was simply a cut and pasted from TiVo's proposal, rubber stamped piece of crap?

I don't know just trying to follow your logic and see where it leads...

 

[Thomas22]

[SIZE=-1] 37 CFR 1.510(b) sets forth the required elements of a request for ex parte reexamination. The elements are as follows:[/SIZE]
[SIZE=-1]"(1) a statement pointing out each substantial new question of patentability based on prior patents and printed publications."[/SIZE]
[SIZE=-1]This statement should clearly point out what the requester considers to be the substantial new question of patentability which would warrant a reexamination. The cited prior art should be listed on a form PTO/SB/08A or 08B, or PTO/SB/42 (or on a form having a format equivalent to one of these forms) by the requester. See also MPEP § 2217.[/SIZE]
[SIZE=-1]A request for reexamination must assert a substantial new question of patentability. > For each identified substantial new question of patentability and each identified proposed ground of rejection, the request must explain how the cited documents identified for that substantial new question of patentability/proposed ground of rejection raise a substantial new question of patentability.< See MPEP § 2216. A requester *>must< not, in a request for reexamination, argue that the submitted references do not raise a substantial new question of patentability, and that no order for reexamination should be issued.[/SIZE]
[SIZE=-1]"(2) An identification of every claim for which reexamination is requested, and a detailed explanation of the pertinency and manner of applying the cited prior art to every claim for which reexamination is requested. If appropriate the party requesting reexamination may also point out how claims distinguish over cited prior art."[/SIZE]

Must assert? Yep. The patent office didn't coin the words "substantial new question". The requester does that. It's a filing requirement.

Proposed ground of rejection? Yep. In a form that can be cut and pasted into the final ruling.

We haven't heard anything from the examiner yet. He's only had it a couple of weeks.

 

[Richard Cranium]

E* filed three motions to strike, on 4/1, 4/16 and 4/24.

Wrong again.

 

[jacmyoung]

Must assert? Yep. The patent office didn't coin the words "substantial new question". The requester does that. It's a filing requirement.

Proposed ground of rejection? Yep. In a form that can be cut and pasted into the final ruling.

We haven't heard anything from the examiner yet. He's only had it a couple of weeks.

Just to confirm, when he does return, 59% of the chance he will "cut and paste" and invalidate the two TiVo's software claims?

Now if this should happen, and happen before the next new jury trial to begin (one would think?), do you agree that the next new trial will be moot, until TiVo succeeds in its appeal of the USPTO's decision?

I am only asking, I am no lawyer, not too sure.

 

[Thomas22]

Patent claims get invalidated and cancelled in 13% of ex parte reexaminations.

 

[Thomas22]

Now if this should happen, and happen before the next new jury trial to begin (one would think?), do you agree that the next new trial will be moot, until TiVo succeeds in its appeal of the USPTO's decision?

The reexamination decision is indicated by the USPTO director's reexamination certificate that is issued after all appeals (if a negative evaluation) have been exhausted. Until that happens, the patent is assumed by law to be valid. The certificate issued by the director is the only thing that counts.