TIVO vs E*
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To be honest, I really enjoy reading court filings and transcripts, forming my own opinions, and not listening to somebody tell me what I should think based on their bias. The snippets you posted are too funny...please post more!
It's a southern Tarrant charcteristic as well, but I've got the transcripts. Just thought I'd say "howdy".
You will never hear those TiVo folks posting anything in that hearing that they do not like to read about, only the items they found "funny" and yet for all the ones they had managed to post here and on the other site, I had pointed out each time what irrelevant nonsense they are. Those posted transcripts are already one-sided baised crap if you will try to read them and form your own opinions.
I will just save my money and wait for their funny postings and point out how stupid those TiVo's questions are.
The TiVo folks are giving such characteristics a bad name. Having the transcripts will not save TiVo. Years from now they will likely be put away next to all the "Dear John" letters in the attics.
You can send an email to the court reporter and she tell you where to send the check. When your check clears she'll email you a pdf and I believe, a wordperfect file. It cost $490.00.
If you need the email address let me know and I will PM it to you.
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At least "those TiVo folks" are quoting from a real document and not just making stuff up. Those TiVo folks aren't pretending to be lawyers. They aren't citing as fact poorly-construed speculation and then drawing conclusions on those invalid assumptions.
Do you have the transcript, or are you just making stuff up yet again? It's a plain and simple fact, TiVo's legal team absolutely decimated DISH's circus clown team lawers. Richard Cranium is providing direct quotations from the document to prove it. Maybe once you pony up the $490, you can show the things that you think "those TiVo folks" don't want to hear.
Is he trying to goad me into posting the whole transcript? One would think a hot shot internet lawyer would spring for the $490 and post it here for us.
Do yourself a favor and take the trash to the curb. Put him on ignore like I did.
Oh, and be sure to come back this afternoon for another installment of the Days of Charlie's Lies.
Thanks. I'll post more this afternoon, I have to cross a few things off the "Honey Do" list first.
Unfortunately you guys have the best weapon (the transcript) and do not know how to shoot.
Here is another joke from your transcript.
Before 5/30/08, E* voluntarily gave TiVo the source code and other evidence, trying to tell TiVo we no longer infringe on your property.
TiVo said so what? We would assemble our army and invade you again (starting the contempt proceeding) anyway, and they marched their army right to the door, begin to catapult all kinds of trash, the only problem is they could not aim at the right direction.
So after a year of feeding their army and catapulting their trash into an empty field, TiVo says to Charlie, look it is very costly for us to fight this war, I am sure it is very costly for you to fight this war too. Why didn't you just surrender in the first place and pay us the loyalty? It would have been better for both of us.
You know what Charlie, there are two other guys that had decided to pay us the ransom before we even attacked them, why don't you do what they do?
What TiVo did not want to tell the judge was, that two guys are also wising up, not wanting to pay the ransom anymore.
Comcast TiVo project is going nowhere after three years, DirecTV is dropping D*TiVo subs like flies, replacing them with their own DVRs.
And more, the news from TiVo's home turf is now they are losing by a large number for the first time themselves.
Stop crying foul, fight like a man
Likewise for you folks, fight a good fight, rather try to hit the report buttons all the time, this is Satguys, not your "village."Oh BTW please pass the message to this one character of yours, if he wants to fight a good fight, know the first rule of engagement, rather stick his d@## head in the sand (or in this case in the water if you know what I mean
) not willing to face his foe, don't let his posts continue to embarrass you.Thanks. I'll post more this afternoon, I have to cross a few things off the "Honey Do" list first.
I, for one, appreciate the posts, but picking and choosing selected excerpts without the full context is also deceptive and IMHO, worse than what those on the other side or the argument have been accused of. While one or more posters offer significant speculation and spout "facts" that are not documented, it is fairly clear, at least to me, that these are stating opinion and it should be taken as such. On the other hand, posting selected excerpts of court transcripts that are not available to the average reader (without spending a significant amount of money) without a way to see the entire context or viewing the refuting arguments or cross-examinations is a means of twisting the truth using facts.
I find the entire discussion interesting and appreciate the posts on both sides of the case (though the personal attacks are uncalled for and unnecessary). This is both informative and educational. Like pretty much everyone else in this thread, I just wish this would come to a resolution and be done already. Fighting this out in the courts does nothing but stifle innovation and keep EVERYONE from taking advantage of the promises that new technology offers!
Q (BY MR. BARQUIST: IS TIVO’S CURRENT POSITION ABOUT PID FILTERING CONSISTENT WITH ITS POSITION AT TRIAL?
A NO.
Q NOW YOU, DR. RHYNE, TOOK THE POSITION AT TRIAL THAT IN THE ECHOSTAR DVRS AT THAT TIME, PID FILTERING WAS PARSING. DO YOU RECALL THAT?
A YES.
Q AND WHAT WAS TIVO’S REACTION WHEN YOU GAVE THAT TESTIMONY?
A MR. IANCU, IN CROSS EXAMINATION, DISAGREED WITH ME.
Q NOW, DID THE JURY ACCEPT YOUR POSITION ABOUT THE PID FILTERS IN THE ORIGINAL PRODUCTS?
A NO.
Q HOW DO YOU KNOW THAT?
A IF THEY HAD ACCEPTED MY POSITION WHICH WAS THAT A PID FILTER ALONE COULD SATISFY THE PARSING LIMITATION OF CLAIMS 31 AND 61, THEN I BELIEVE THEY WOULD HAVE FOUND AT LEAST INVALIDITY BASED ON –-
MR. CHU: YOUR HONOR, THIS IS REALLY THREE LAYERS OF SPECULATION ABOUT WHAT THE JURY WAS THINKING, AND THAT IF THIS HAPPENED THEN THEY WOULD HAVE FOUND INVALIDITY.
THE COURT: I UNDERSTAND, BUT THEY SEEM TO WANT TO GO DOWN THIS PATH, SO I GUESS WE ARE GOING TO TAKE ALL THIS TIME DOING SO.
MR. CHU: OKAY.
THE COURT: SO I AM GOING TO OVERRULE IT.
MR. CHU: CAN I HAVE A RUNNING OBJECTION TO ALL OF THIS?
THE COURT: YES. I MEAN, OBVIOUSLY ALL WE KNOW IS WHAT THE JURY VERDICT WAS. WE DON’T KNOW EXACTLY THE THOUGHT PROCESS OF THE JURY.
MR. BARQUIST: OF COURSE, YOUR HONOR.
MR. CHU: SO I DO HAVE A RUNNING OBJECTION –-
THE COURT: YES, YOU HAVE A RUNNING OBJECTION.
MR. CHU: –- ON IRRELEVANCE AND FOUNDATION, AND OTHER GROUNDS AND SPECULATION?
THE COURT: YOU MAY CONTINUE.
A NO.
Q NOW YOU, DR. RHYNE, TOOK THE POSITION AT TRIAL THAT IN THE ECHOSTAR DVRS AT THAT TIME, PID FILTERING WAS PARSING. DO YOU RECALL THAT?
A YES.
Q AND WHAT WAS TIVO’S REACTION WHEN YOU GAVE THAT TESTIMONY?
A MR. IANCU, IN CROSS EXAMINATION, DISAGREED WITH ME.
Q NOW, DID THE JURY ACCEPT YOUR POSITION ABOUT THE PID FILTERS IN THE ORIGINAL PRODUCTS?
A NO.
Q HOW DO YOU KNOW THAT?
A IF THEY HAD ACCEPTED MY POSITION WHICH WAS THAT A PID FILTER ALONE COULD SATISFY THE PARSING LIMITATION OF CLAIMS 31 AND 61, THEN I BELIEVE THEY WOULD HAVE FOUND AT LEAST INVALIDITY BASED ON –-
MR. CHU: YOUR HONOR, THIS IS REALLY THREE LAYERS OF SPECULATION ABOUT WHAT THE JURY WAS THINKING, AND THAT IF THIS HAPPENED THEN THEY WOULD HAVE FOUND INVALIDITY.
THE COURT: I UNDERSTAND, BUT THEY SEEM TO WANT TO GO DOWN THIS PATH, SO I GUESS WE ARE GOING TO TAKE ALL THIS TIME DOING SO.
MR. CHU: OKAY.
THE COURT: SO I AM GOING TO OVERRULE IT.
MR. CHU: CAN I HAVE A RUNNING OBJECTION TO ALL OF THIS?
THE COURT: YES. I MEAN, OBVIOUSLY ALL WE KNOW IS WHAT THE JURY VERDICT WAS. WE DON’T KNOW EXACTLY THE THOUGHT PROCESS OF THE JURY.
MR. BARQUIST: OF COURSE, YOUR HONOR.
MR. CHU: SO I DO HAVE A RUNNING OBJECTION –-
THE COURT: YES, YOU HAVE A RUNNING OBJECTION.
MR. CHU: –- ON IRRELEVANCE AND FOUNDATION, AND OTHER GROUNDS AND SPECULATION?
THE COURT: YOU MAY CONTINUE.
Q (MR. CHU, TiVo) WELL, LET’S ASK A BROADER QUESTION, DR. RHYNE. IS IT FAIR, FIRST OF ALL, THAT THE TERM PARSE HASN’T CHANGED AT ALL?
A (Rhyne) IT’S JUST AN ENGLISH WORD. I DON’T KNOW –- I GUESS I DON’T UNDERSTAND YOUR QUESTION.
Q AND THERE WERE PID FILTERS IN THE ECHOSTAR PRODUCTS DURING THE JURY TRIAL, CORRECT?
A YES.
Q AND WITHOUT MY TRYING TO DESCRIBE THE EXACT FUNCTION, THEY PERFORMED ONE OR MORE FUNCTIONS, CORRECT?
A BASICALLY ONE FUNCTION.
Q AND THERE ARE PID FILTERS IN ALL THE ECHOSTAR PRODUCTS AT ISSUE TODAY, CORRECT?
A YES. YES.
Q AND THEY STILL PERFORM THAT FUNCTION, CORRECT?
A THAT SAME FUNCTION THAT THEY PERFORMED BEFORE. SOME OF THEM DO IT A LITTLE BIT DIFFERENTLY, BUT THEY ARE STILL PERFORMING THE SAME BASIC FUNCTION.
Q HARDWARE IS THE SAME THERE, RIGHT?
A THE HARDWARE, MORE OR LESS, EXCEPT FOR THE DISABLED PARTS IN THE BROADCOM.
Q YOU WOULD AGREE THAT AT THE TIME OF THE JURY TRIAL ALL ECHOSTAR PRODUCTS PARSED THE MPEG STREAM?
A THOSE PRODUCTS DID.
Q UNDER THE COURT’S CLAIM CONSTRUCTION?
A YES.
Q AND YOU WOULD AGREE AT THAT TIME THAT THE PID FILTERING WAS RESPONSIBLE FOR THE PARSING?
A THAT WAS MY OPINION BEFORE THE JURY.
Q UNDER THE COURT’S CLAIM CONSTRUCTION?
A YES.
Q AND THE ONLY DIFFERENCE BETWEEN YOUR OPINION THEN AND NOW IS THE RESULT OF THE JURY VERDICT, AS YOU JUST REFERRED TO?
A THAT’S CORRECT, THE JURY VERDICT --
Q THANK YOU.
A –- CHANGED MY OPINION.
Q DO YOU RECALL READING ANY SPECIAL VERDICT, SPECIAL INTERROGATORIES, BASICALLY SOME QUESTIONS PUT TO THE JURY ABOUT HOW IN THEIR MINDS THEY WERE INTERPRETING AND APPLYING
THE WORD PARSING TO THE MPEG STREAM?
A I HAVE NO RECOLLECTION OF THAT.
Q THANK YOU.
A (Rhyne) IT’S JUST AN ENGLISH WORD. I DON’T KNOW –- I GUESS I DON’T UNDERSTAND YOUR QUESTION.
Q AND THERE WERE PID FILTERS IN THE ECHOSTAR PRODUCTS DURING THE JURY TRIAL, CORRECT?
A YES.
Q AND WITHOUT MY TRYING TO DESCRIBE THE EXACT FUNCTION, THEY PERFORMED ONE OR MORE FUNCTIONS, CORRECT?
A BASICALLY ONE FUNCTION.
Q AND THERE ARE PID FILTERS IN ALL THE ECHOSTAR PRODUCTS AT ISSUE TODAY, CORRECT?
A YES. YES.
Q AND THEY STILL PERFORM THAT FUNCTION, CORRECT?
A THAT SAME FUNCTION THAT THEY PERFORMED BEFORE. SOME OF THEM DO IT A LITTLE BIT DIFFERENTLY, BUT THEY ARE STILL PERFORMING THE SAME BASIC FUNCTION.
Q HARDWARE IS THE SAME THERE, RIGHT?
A THE HARDWARE, MORE OR LESS, EXCEPT FOR THE DISABLED PARTS IN THE BROADCOM.
Q YOU WOULD AGREE THAT AT THE TIME OF THE JURY TRIAL ALL ECHOSTAR PRODUCTS PARSED THE MPEG STREAM?
A THOSE PRODUCTS DID.
Q UNDER THE COURT’S CLAIM CONSTRUCTION?
A YES.
Q AND YOU WOULD AGREE AT THAT TIME THAT THE PID FILTERING WAS RESPONSIBLE FOR THE PARSING?
A THAT WAS MY OPINION BEFORE THE JURY.
Q UNDER THE COURT’S CLAIM CONSTRUCTION?
A YES.
Q AND THE ONLY DIFFERENCE BETWEEN YOUR OPINION THEN AND NOW IS THE RESULT OF THE JURY VERDICT, AS YOU JUST REFERRED TO?
A THAT’S CORRECT, THE JURY VERDICT --
Q THANK YOU.
A –- CHANGED MY OPINION.
Q DO YOU RECALL READING ANY SPECIAL VERDICT, SPECIAL INTERROGATORIES, BASICALLY SOME QUESTIONS PUT TO THE JURY ABOUT HOW IN THEIR MINDS THEY WERE INTERPRETING AND APPLYING
THE WORD PARSING TO THE MPEG STREAM?
A I HAVE NO RECOLLECTION OF THAT.
Q THANK YOU.
You seemed to have already cut off E*'s invalidity argument, the judge asked E* to continue, after overuling TiVo, yet you failed to post the next.
And we had talked about the above before, yes, E* said their opinion changed, TiVo's only argument was, but how could you change your opinion? Don't you know your credibility is at stake if you change your opinion?
What TiVo again failed to understand is, in a summary proceeding, the credibility of the witness is not the issue, rather if a dispute of fact exists. E* now said their opinion has changed, therefore they have established a dispute, the dispute is the PID filter cannot be.
TiVo cannot just say hey you did not say so last time, therefore you may not say so now. TiVo's job is to argue that the current E*'s changed opinion is wrong, but TiVo cannot do that, so they keep saying but you said that before, how could you change your mind? This makes you look bad.
Let me say it again, in a summary contempt proceeding, the judge's job is not to determine the credibility of the witnesses, rather to determine if a dispute exists.
If E* demonstrates a dispute now exists, TiVo does not address such dispute, the judge will have to adopt E*'s view, because TiVo has no counter-view.
Another installement of Days of Charlie's Lies
Here's the latest installment of Days of Charlie's Lies. Last we heard from our hero Charlie he testified that he thought Judge Folsom was a moron and made "multiple mistakes" and Charlie would be vindicated by the Court of Appeals.
In this installment, Morgan Chu, (a guy that actually passed the Bar Exam as opposed to getting his law license off the internet) continues to show more of Charlie's "good will" and gets Charlie to admit that he knew the "herculean" effort was supposed to go in front of judge for a ruling before he took it upon himself to disregard Judge Folsom's order to shut his boxes down (contempt).
Mr Chu also touches upon the "good will" of Charlie by getting him to explain how he started a $100 million ad campain, while stayed for infringing, on how his DVR's are "better then Tivo's".
We also have some objections by Mr. McElhinny (another real lawyer) (which are all overruled of course) sprinkled in to let us know he's on the job and EARNING his money.
Once again, I'm no lawyer, nor do I play one on the internet, but you just have to laugh at how Charlie "dummies up" when asked an uncomfortable question or caught in one of his lies. There is a lot of "I don't know, "I'm not a legal expert" (in real life or the internet), "Could you repeat the question" etc.
Anyway, enjoy the latest installment of The Days of Charlie's Lies....
Q NOW, IN OCTOBER OF 2006 ECHOSTAR BEGAN TO DOWNLOAD
MODIFIED SOFTWARE, CORRECT?
A NO.
Q ON OCTOBER 24, 2006, WAS ANY MODIFIED SOFTWARE
TRANSMITTED TO ECHOSTAR DVR BOXES THAT ARE AT ISSUE IN THIS
CASE?
A YES.
Q AND THAT INCLUDED CHANGES TO THE SOFTWARE THAT ALLEGEDLY
DESIGNED AROUND THE TIVO PATENT CLAIMS, CORRECT?
A I BELIEVE WHAT WE DID WAS DOWNLOADED TO A SMALL NUMBER OF
BOXES, DISABLED THE EXISTING SOFTWARE, REBOOTED THE BOX, AND
DOWNLOADED NEW SOFTWARE.
Q AND OVER THE NEXT SEVERAL MONTHS YOU ENDED UP
TRANSMITTING TO WHAT YOU CONSIDERED TO BE MILLIONS OF BOXES,
IS THAT CORRECT, AFTER YOU FIXED THE BUGS AND THE LIKE?
A YES.
Q AND THROUGHOUT THIS PERIOD OF TIME THERE WAS NO
INFORMATION GIVEN TO THE DISTRICT COURT OR THE COURT OF
APPEALS THAT YOU BELIEVED THAT YOU HAD MODIFIED SOFTWARE THAT
SUPPOSEDLY DESIGNED AROUND THE TIVO PATENT CLAIMS, CORRECT?
A I DON’T THINK SO, NO.
Q AND AT THIS POINT IN TIME, STARTING OCTOBER OF 2006 GOING
FORWARD, YOU HAD ACTUALLY ALREADY MONTHS EARLIER HAD GOTTEN
OFFICIAL OPINION LETTERS FROM FISH & RICHARDSON ON WHICH YOU
WERE RELYING TO ASSERT THAT YOUR SUPPOSED DESIGN-AROUNDS WERE
SUCCESSFUL. IS THAT CORRECT?
A YES.
Q AND YOU NEITHER INFORMED THE DISTRICT COURT OR THE
FEDERAL CIRCUIT OF THAT, CORRECT?
A NO.
Q AND IF THE DESIGN-AROUNDS WERE SUCCESSFUL, THEN THE
GRIEVOUS INJURY OF $90 MILLION DOLLARS PER MONTH OR MORE WOULD
NOT APPLY IN YOUR OPINION, CORRECT?
A I AM NOT SURE I TOTALLY UNDERSTAND THAT QUESTION.
Q WELL, IF THE SOFTWARE WAS NO LONGER INFRINGING, THEN FROM
YOUR POINT OF VIEW YOU COULD CONTINUE TO COLLECT REVENUE FROM
THE DVRS THAT WERE THE SUBJECT MATTER OF THIS LAWSUIT. IS
THAT RIGHT?
A HYPOTHETICALLY, THAT –- DO WE HAVE A TIME FRAME WE ARE
TALKING ABOUT?
Q FROM THE TIME OF THE INJUNCTION IN MID-2006 GOING FORWARD
UNTIL THE FEDERAL CIRCUIT RENDERED ITS FINAL DECISION IN
JANUARY OF 2008, IF YOU IN FACT HAD NON-INFRINGING SOFTWARE,
FROM YOUR POINT OF VIEW, THEN AN INJUNCTION OUGHT NOT TO APPLY
AGAINST THAT SOFTWARE?
A I AGREE IF WE HAD NON-INFRINGING SOFTWARE THAT AN
INJUNCTION SHOULDN’T APPLY AGAINST IT.
Q AND YOU UNDERSTAND THAT YOU OBTAINED AN EMERGENCY STAY OF
HIS HONOR’S PERMANENT INJUNCTION FROM THE FEDERAL CIRCUIT BY
ASSERTING THAT YOU WOULD BE GRIEVOUSLY INJURED TO THE TUNE OF
AT LEAST $90 MILLION DOLLARS A MONTH. IS THAT RIGHT?
A THAT’S CORRECT.
Q BUT YOU FAILED TO DISCLOSE AT ANY TIME TO THE FEDERAL
CIRCUIT OR TO ANY COURT THE FACT THAT YOU THOUGHT YOU ALREADY
HAD A NON-INFRINGING DESIGN, AND SOME MONTHS LATER HAD IN FACT
DOWNLOADED IT TO THE ECHOSTAR DVRS. IS THAT CORRECT?
A THAT’S A COMPOUNDED QUESTION, SO LET ME TAKE THEM –- TAKE
EACH ONE SEPARATELY. WE –-
Q LET ME BREAK IT UP. PERHAPS YOU ARE RIGHT, IT WAS
COMPOUND. YOU NEVER INFORMED THE FEDERAL CIRCUIT THAT YOU HAD
DOWNLOADED WHAT YOU CONSIDERED TO BE NON-INFRINGING SOFTWARE.
IS THAT RIGHT?
A I DON’T BELIEVE SO.
Q EVEN THOUGH THE FEDERAL CIRCUIT’S STAY ORDER THAT YOU
OBTAINED WAS IN EFFECT AFTER YOU HAD DOWNLOADED WHAT YOU
CONSIDERED TO BE NON-INFRINGING SOFTWARE. IS THAT CORRECT?
A I AM NOT SURE I HEARD THAT CORRECT. WE DOWNLOADED THE
SOFTWARE AFTER THE STAY WAS IN EFFECT. IS THAT WHAT YOU SAID?
THE DOWNLOAD OF THE SOFTWARE WAS AFTER, AFTER THE STAY HAD
BEEN ISSUED.
Q YES. BUT THE BASIS FOR THE STAY, AT LEAST THE ARGUMENT
BY ECHOSTAR, WAS THAT IT WOULD HURT ECHOSTAR TO THE TUNE OF
$90 MILLION DOLLARS A MONTH. YOU NEVER PROVIDED THE
ADDITIONAL INFORMATION THAT HAD BEEN CONCEALED UP TO THAT DATE
THAT YOU HAD DOWNLOADED THE SOFTWARE. IS THAT RIGHT?
MR. MCELHINNY: THAT ARGUMENT –- THAT’S
ARGUMENTATIVE, CONCEALING.
THE COURT: WELL, REPHRASE WITHOUT USING CONCEALED.
Q (BY MR. CHU OKAY. YOU NEVER COMMUNICATED TO ANY COURT
THAT YOU HAD DOWNLOADED WHAT YOU CONSIDERED TO BE NON-
INFRINGING SOFTWARE?
A YES, WE HAVE COMMUNICATED TO THIS COURT HERE THAT WE HAVE
DONE THAT.
Q SIR, WHILE THE STAY WAS IN PLACE FROM MID-2006 TO THE
BEGINNING OF 2008, YOU NEVER COMMUNICATED TO ANY COURT AT ANY
TIME THAT YOU HAD DOWNLOADED WHAT YOU CONSIDERED TO BE NON-
INFRINGING SOFTWARE. IS THAT CORRECT?
A THAT’S CORRECT.
Q AND ONE OF THE CONSIDERATIONS IN MAKING THAT DECISION WAS
THAT YOU KNEW THAT TIVO OR ONE OF THE COURTS WOULD SAY, LET’S
SEE IF IT’S REALLY NON-INFRINGING INSTEAD OF LETTING ECHOSTAR
DECIDE THAT ON ITS OWN. THAT WAS A CONSIDERATION IN YOUR
DECISION-MAKING, CORRECT?
A I DON’T THINK SO.
Q SO DURING THE PERIOD OF TIME OF THE STAY, IS IT CORRECT
THAT YOU LAUNCHED AN ADVERTISING CAMPAIGN THAT WAS
SPECIFICALLY AIMED AT TIVO?
A I WOULDN’T PHRASE IT THAT WAY, NO.
Q YOU LAUNCHED AN ADVERTISING CAMPAIGN THAT FOR THE FIRST
TIME SPECIFICALLY BEGAN TO USE THE TIVO NAME AS AN INTEGRAL
PART OF THE ADVERTISEMENT. IS THAT CORRECT?
A I THINK WE HAD USED TIVO’S NAME BEFORE.
Q YOU LAUNCHED AN ADVERTISING CAMPAIGN WHEN THE STAY WAS –-
AFTER YOU HAD SECURED THE STAY THAT WAS TOUTING THE ECHOSTAR
DVR BOXES AS, QUOTE, BETTER THAN TIVO. IS THAT CORRECT?
A I BELIEVE WE RAN AN ADVERTISEMENT THAT DID USE
TERMINOLOGY BETTER THAN TIVO, YES.
Q SO LET’S SEE MR. ERGEN’S SLIDE 2. THIS IS AN EXAMPLE OF
THAT ADVERTISING CAMPAIGN. IS THAT CORRECT?
THE COURT: IS THERE A DATE AVAILABLE FOR THAT?
MR. CHU: LET ME SEE IF I HAVE ONE. LET ME ASK MR.
ERGEN.
Q (BY MR. CHU DO YOU RECALL THAT YOU BEGAN THIS
ADVERTISING CAMPAIGN USING ADVERTISINGS –- ADVERTISEMENTS,
SUCH AS THE ONE WE HAVE ON THE SCREEN, AFTER THE STAY FROM THE
FEDERAL CIRCUIT WAS IN EFFECT?
A YES.
Q DO YOU RECALL SPENDING MORE THAN A MILLION DOLLARS ON
THAT?
A ON THE TOTAL CAMPAIGN, YES, WE SPENT MORE THAN A MILLION
DOLLARS.
Q WELL, MORE THAN FIVE MILLION?
A YES.
Q MORE THAN TEN MILLION?
A YES.
Q MULTIPLE TENS OF MILLIONS?
A YES.
Q MORE THAN FIFTY MILLION?
A I BELIEVE SO, YES.
Q AND YOU CONSIDER TIVO TO BE A DIRECT COMPETITOR WITH
RESPECT TO DVRS. IS THAT CORRECT?
A YES.
Q IT WAS TO YOUR FINANCIAL BENEFIT TO PUT OFF THE DATE AS
TO WHEN THERE COULD BE A COURT HEARING WITH RESPECT TO THE
ALLEGEDLY DESIGNED AROUND SOFTWARE DURING THE PERIOD OF THE
STAY. IS THAT CORRECT?
A I DON’T KNOW IF THAT’S TRUE OR NOT.
Q WELL, YOU KNEW YOU COULD HAVE COME TO COURT AND SAID, WE
THINK WE HAVE DESIGNED AROUND THE SOFTWARE, AND BEFORE WE
DEPLOY IT WE WOULD LIKE THE COURT TO DECIDE WHETHER IT REALLY
IS A DESIGN-AROUND. YOU KNEW THAT WAS AN OPTION, CORRECT?
A I GUESS THEORETICALLY THAT WAS AN OPTION, YES.
Q AND YOU COULD HAVE DONE THAT IN MID-2006 WHEN THE
PERMANENT INJUNCTION WAS FIRST ENTERED IMMEDIATELY AFTER THE
FEDERAL CIRCUIT STAYED THE APPLICATION OF THE INJUNCTION,
CORRECT?
A I DON’T THINK SO.
Q YOU COULDN’T DO THAT? YOU WERE PHYSICALLY STOPPED FROM
RAISING THE ISSUE?
A WE DIDN’T HAVE A DESIGN-AROUND IN MID-2006.
Q BY LATER 2006, YOU HAD THE DESIGN DOCUMENTATION, YOU HAD
BEGUN TO DOWNLOAD SOFTWARE, YOU HAD THE FISH & RICHARDSON
OPINIONS, CORRECT?
A LATER IN 2006, WE DID.
Q AND AT THAT POINT YOU COULD HAVE COME FORWARD TO TIVO AND
THE COURTS AND SAID, WE THINK WE HAVE DESIGNED AROUND. LET’S
SEE IF IT’S TRUE. LET’S GET THIS DECIDED FAIR AND SQUARE.
THAT WAS A POSSIBILITY. YOU COULD HAVE COME FORWARD WITH THAT
INFORMATION, CORRECT?
A I DON’T KNOW IF THERE WAS ANY LAW TO PREVENT YOU FROM
DOING THAT. I DON’T KNOW.
Q YOU COULD HAVE COME FORWARD WITH THAT INFORMATION?
A SO I THINK BASED ON MY MIND, BASED ON WHAT I KNOW, I
THINK WE COULD HAVE DONE THAT.
Q THANK YOU. AND THE FACT OF THE MATTER IS THAT IT WAS
DURING THAT PERIOD OF TIME THE ONLY PUBLIC STATEMENTS ABOUT A
DESIGN-AROUND WERE TO THE EFFECT THAT YOU WERE TRYING TO DO A
DESIGN-AROUND. IS THAT CORRECT?
A AT THE TIME THAT’S WHAT WE WERE TRYING TO DO, YES.
Q AND THE ONLY TIME YOU FIRST ANNOUNCED THAT YOU SUPPOSEDLY
HAD A DESIGN-AROUND WAS AT THE END OF THE ROAD WHEN THE
FEDERAL CIRCUIT HAD AFFIRMED, THEN SHORTLY AFTER THE UNITED
STATES SUPREME COURT REFUSED TO HEAR YOUR FURTHER APPEAL TO
THAT BODY, CORRECT?
A MY RECOLLECTION IS THAT SHORTLY AFTER THE COURT OF
APPEALS’ FINAL VERDICT, WE DID MAKE A DISCLOSURE THAT WE HAD
IN FACT IMPLEMENTED A DESIGN-AROUND.
Q SO DURING THIS PERIOD FROM THE ORIGINAL ISSUANCE OF THE
PERMANENT INJUNCTION TO THE FINAL DECISION OF THE FEDERAL
CIRCUIT, YOU WERE AGGRESSIVELY MARKETING THE ECHOSTAR DVRS,
CORRECT?
A WELL, I THINK WE WERE AGGRESSIVELY MARKETING OUR SERVICE.
AS A SMALL PART OF THAT, IT’S KIND OF BLOWN UP IN THE PICTURE
THERE, AS A SMALL PART OF THAT WE HIGHLIGHTED THE EDITOR’S
AWARD THAT WE HAD WON OVER TIVO FROM -- FROM A THIRD PARTY.
Q NOW, YOU HAVE SOME UNDERSTANDING OF WHAT THE SUPPOSED
DESIGN-AROUNDS ARE. IS THAT CORRECT?
A YES, I DID.
Q FOR EXAMPLE, YOU KNOW DETAILS SUCH AS THE SUPPOSED
DESIGN-AROUND FOR THE 50X BOXES AS WELL AS THE BROADCOM BOXES
INCLUDES ECHOSTAR’S POSITION THAT THOSE BOXES NO LONGER DO
INDEXING. IS THAT CORRECT?
A I THINK IN GENERAL THAT’S –- IN GENERAL THAT’S AN
ACCURATE STATEMENT, YES.
Q YOU ALSO HAVE THE UNDERSTANDING SINCE YOU –- THIS IS THE
THIRD TRIAL INVOLVING TIVO V. ECHOSTAR THAT YOU’VE TESTIFIED
AT, THAT PATENT CLAIMS ARE CONSTRUED BY THE COURT, CORRECT?
A I KNOW THAT THE COURT CONSTRUES PATENT CLAIMS. THE JURY
MAY AS WELL. I’M NOT SURE. I DON’T KNOW IF IT’S JUST LIMITED
TO THE COURT. I THINK MAYBE THE JURY DOES AS WELL. I MAY BE
WRONG ON THAT.
Q IN REACHING YOUR DECISION NOT TO DISABLE THE 50X BOXES,
DID YOU AT ALL CONSIDER THE FACT THAT THE ONLY BASIS ON WHICH
THEY ARE SUPPOSEDLY NON-INFRINGING IS THE FACT THAT THEY DO
NOT DO INDEXING?
A WELL, I DON’T THINK I CAN ANSWER THAT YES OR NO.
Q BUT YOU DO UNDERSTAND THAT THAT IS THE REASON THAT’S
BEING PUT FORWARD AS TO WHY THEY SUPPOSEDLY DO NOT INFRINGE
THE 50X BOXES?
A I HAVE A GENERAL UNDERSTANDING OF WHY WE BELIEVE THE 50X
BOXES DO NOT NOW INFRINGE.
Q AND YOU MADE YOUR DECISION NOT TO DISABLE THOSE BOXES
DESPITE THE FACT THAT YOU DO NOT KNOW IF THE COURT HAS
INTERPRETED CLAIM 31 AS REQUIRING INDEXING?
A AGAIN, I DON’T BELIEVE I CAN ANSWER THAT IN YES OR NO.
Q I WOULD LIKE TO READ YOUR DEPOSITION TRANSCRIPT FROM
FEBRUARY OF THIS YEAR, 2009, PAGE 17, LINE 4-10:
QUESTION: AND IS IT YOUR UNDERSTANDING THAT THE
COURT HAS INTERPRETED CLAIM 31 AS REQUIRING INDEXING?
ANSWER: I DON’T THINK I –- I DON’T WANT TO –- I’M
NOT AN EXPERT FOR WHAT THE COURT HAS RULED, AND I THINK THE
COURT KNOWS HOW THEY HAVE RULED.
Q NOW, YOU ALSO HAVE THE UNDERSTANDING THAT THERE IS A
PARTICULAR KIND OF BUFFERING SYSTEM THAT IS IN THE MODIFIED
SOFTWARE. IS THAT CORRECT?
A I HAVE A GENERAL UNDERSTANDING OF BUFFERING. I SHOULD
SAY FLOW CONTROL. I KNOW IT SOMEHOW RELATES TO BUFFERING.
Q AND YOU UNDERSTAND THAT IT’S ECHOSTAR’S POINT OF VIEW AND
THAT IT SHOULD NOT BE HELD IN CONTEMPT BECAUSE IT DOES NOT USE
A BUFFERING SYSTEM TO CONTROL THE OVERFLOW OF DATA. IS THAT
CORRECT?
A MY UNDERSTANDING IS MAYBE A LITTLE DIFFERENT THAN THAT.
MY UNDERSTANDING IS THAT WE DO –- WE DO NOT HAVE THE ABILITY
TO NOT –- TO SHUT OFF DATA, AND THAT WE CAN HAVE OVERFLOWING
CONDITIONS.
Q AND THAT’S A REASON SUPPOSEDLY FROM ECHOSTAR’S POINT OF
VIEW THAT IT SHOULD NOT BE HELD IN CONTEMPT. IS THAT RIGHT?
A BASED ON OUR OUTSIDE LEGAL COUNSEL AND BASED ON –-
Q SIR, CAN YOU ANSWER FAIRLY YES OR NO?
A CAN YOU REPEAT THE QUESTION?
Q IT’S JUST A GENERAL QUESTION. ONE OF THE REASONS WHY FOR
THE BROADCOM BOXES THAT YOU DO NOT BELIEVE YOU SHOULD BE HELD
IN CONTEMPT IS BECAUSE A PARTICULAR BUFFERING SYSTEM IS BEING
USED THAT DOES NOT INFRINGE, CORRECT?
A AGAIN, IN MY MIND IT’S A LITTLE –- I’M NOT QUITE AS
COMPLEX AS THAT. I WOULD SAY IT A DIFFERENT WAY. AS I STATED
EARLIER IN MY ANSWER, I BELIEVE WE DO NOT PRACTICE FLOW
CONTROL. WE DON’T HAVE THE ABILITY TO DO FLOW CONTROL.
Q AND THAT’S RELATED TO THE BUFFERING SYSTEM?
A AND MY UNDERSTANDING IS THAT IT’S SOMEHOW RELATED TO
BUFFERING, YES.
Q AND YOU DON’T KNOW, DESPITE THE FACT THAT YOU’VE DECIDED
NOT TO DISABLE THOSE BROADCOM DVRS, YOU DON’T KNOW IF THE
COURT’S CLAIM CONSTRUCTION REQUIRES A PARTICULAR BUFFERING
SYSTEM. IS THAT CORRECT?
MR. MCELHINNY: IT’S COMPOUND, AND THE INTRODUCTION
IS ARGUMENTATIVE AND INCORRECT, YOUR HONOR.
MR. CHU: I’LL RESTATE IT.
THE COURT: REPHRASE IT.
Q (BY MR. CHU YOU DO NOT KNOW WHETHER THE COURT’S CLAIM
CONSTRUCTION REQUIRES A PARTICULAR BUFFERING SYSTEM. IS THAT
FAIR?
A I DON’T HOLD MYSELF OUT AS A LEGAL EXPERT, NO.
Q SO YOU DON’T KNOW ONE WAY OR THE OTHER WHETHER IT’S
REQUIRED?
A WELL, YES, I HAVE AN UNDERSTANDING OF THAT. WE GOT
OUTSIDE LEGAL COUNSEL TO LOOK AT THOSE ISSUES AND –-
Q BUT –-
A –- BASED ON EVERYTHING --
Q EXCUSE ME.
A -- THAT I’VE BEEN TOLD AND I’VE BEEN RELYING ON –-
THE COURT: GENTLEMEN, GENTLEMEN, DON’T –- LET HIM
FINISH.
MR. CHU: EXCUSE ME. OKAY.
THE COURT: IF YOU HAVE AN OBJECTION, RAISE IT.
OTHERWISE, LET HIM FINISH HIS ANSWER AND ASK YOUR NEXT
QUESTION.
MR. CHU: OKAY. THANK YOU, YOUR HONOR.
A AND SO –-
A SO I RELIED ON THOSE EXPERTS.
Q WAS IT THE VIEW OF SOME PEOPLE AT ECHOSTAR THAT YOU
COULDN’T CONCLUDE THAT YOU DIDN’T INFRINGE AND THAT YOU COULD
CONTINUE TO DEPLOY THE SPECIFIC DVRS THAT ARE AT ISSUE IN THIS
HEARING UNTIL A COURT SAID, YES INDEED, IT IS A VALID
WORK-AROUND?
MR. MCELHINNY: I’M SORRY, YOUR HONOR, THAT WAS SO
COMPOUND THAT ACTUALLY I’VE LOST IT, SO I DON’T –-
MR. CHU: I’LL RESTATE IT.
Q (BY MR. CHU WAS IT EVER EXPRESSED AT ECHOSTAR THAT WHAT
YOU HAD TO DO OR SHOULD DO IS TO GO TO COURT TO FIND OUT
WHETHER YOU HAD A VALID WORK-AROUND RATHER THAN CONTINUING ON
WITHOUT DISABLING THE DVRS?
A I DON’T THINK THE ANSWER TO THAT QUESTION IS –- OBVIOUSLY
THE ANSWER TO THAT QUESTION IS NO.
Q I’D LIKE TO READ PART OF A STATEMENT BY DAVID MOSKOWITZ.
BY THE WAY, WHO IS DAVID MOSKOWITZ?
A DAVID MOSKOWITZ WAS OUR FORMER –- WAS A GENERAL COUNSEL
TO ECHOSTAR UP UNTIL ABOUT 2007.
Q AND –-
MR. MCELHINNY: AT THE MOMENT THERE IS NO FOUNDATION
TO READ THIS OR TO USE IT FOR IMPEACHMENT, YOUR HONOR.
MR. CHU: WELL, I’M GOING TO ASK WHETHER IT REFRESHES
HIS RECOLLECTION ON THE SUBJECT MATTER OF MY PRIOR QUESTION.
THE COURT: OVERRULED. YOU MAY READ IT. AND WHAT IS
THIS FROM?
MR. CHU: THIS IS FROM AN ANALYST CALLED TYPICALLY
AFTER AN EARNINGS ANNOUNCEMENT, AND THERE ARE STATEMENTS MADE
BY COMPANY OFFICERS.
Q (BY MR. CHU IS THAT GENERALLY TRUE, MR. ERGEN?
A YES.
Q DOES IT REFRESH YOU –-
THE COURT: I MEAN, IS THIS AN EXHIBIT OR –-
MR. CHU: YES.
THE COURT: WHICH ONE?
MR. CHU: IT IS 3313, AND THIS IS AT PAGE 8 AND IT’S
AT THE BOTTOM OF THE PAGE. IT ACTUALLY SAYS UNKNOWN SPEAKER
AS IS OFTEN THE CASE IN TRANSCRIPTS, BUT I THINK WE ARE FAIRLY
CONFIDENT. CAN WE JUST BLOW THAT UP, ON THE LAST BRACKET THAT
SAYS UNKNOWN SPEAKER?
Q (BY MR. CHU SO LET ME JUST READ IT. QUOTE: MY
UNDERSTANDING IS MOST OF THAT HAS COME THROUGH THE NEWS CORP
RELATIONSHIP VERSUS THE DIRECT TV RELATIONSHIP -- THIS IS
RESPONDING TO PART OF A QUESTION –- AND WE CONTINUE TO LOOK AT
WAYS AGAIN TO THE EXTENT WE HAVE A BROADBAND PLATFORM AND WE
WILL MAKE MORE ANNOUNCEMENTS AS WE GET FURTHER ALONG THAT
PATH. BUT I WOULDN’T ASSUME THAT OUR SILENCE MEANS THAT WE
ARE NOT ACTIVELY PURSUING THINGS THAT CAN ENHANCE OUR
EXPERIENCE AND BE MORE COMPETITIVE IN THE MARKETPLACE. AND
IT’S AGAIN -- HOLD ON A MOMENT, I THINK WE ARE ON THE WRONG
PAGE. I APOLOGIZE. I THINK I WAS A PAGE OFF. OKAY.
Q MR. ERGEN, WOULD YOU READ THAT ALOUD?
A WELL, WE ARE SPENDING ENGINEERING RESOURCES TO TRY TO
DEVELOP WORK-AROUNDS WHICH WOULD MAKE OUR PRODUCTS NON-
INFRINGING EVEN UNDER THE ANALYSIS THE DISTRICT COURT GAVE,
AND WE’VE MADE GOOD PROGRESS IN THAT REGARD, BUT WE’RE NOT
FINISHED WITH THAT DEVELOPMENT. UNTIL THAT DEVELOPMENT IS
COMPLETED AND IMPLEMENTED AND THE COURT CONCLUDES THAT, YES,
INDEED IT IS A VALID WORK-AROUND, WE CAN’T SAY WE’VE GOT ONE.
BUT WE ARE CERTAINLY DOING ALL THE RIGHT THINGS THAT WE CAN
PRUDENTLY –- WE CAN PRUDENTLY TO LOOK AT THIS FROM EVERY ANGLE
WE CAN.
Q SO THAT VIEW WAS EXPRESSED AT ECHOSTAR BY A SENIOR
OFFICER THAT YOU CAN’T SAY YOU’VE GOT A VALID WORK-AROUND
UNTIL A COURT SAYS YOU’VE GOT ONE. IS THAT RIGHT?
A WELL, I THINK IN THE CONTEXT OF HIS SPEAKING, I THINK IT
SPEAKS FOR ITSELF, AND I THINK THAT –- I THINK THAT THE
UNKNOWN SPEAKER PROBABLY WAS AN EXECUTIVE OF ECHOSTAR. AND IT
PROBABLY WAS A CONFERENCE CALL, AS YOU SAID.
Q SIR, IF THIS COURT DECIDES THAT ECHOSTAR HAS BEEN IN
VIOLATION OF ITS INJUNCTION SINCE THE STAY WAS LIFTED, HOW
QUICKLY COULD YOU DISABLE THE DVR BOXES THAT ARE THE SUBJECT
MATTER OF THE INJUNCTION?
A I DON’T KNOW EXACTLY.
Q BUT IT IS A SOFTWARE DOWNLOAD WHERE YOU ESSENTIALLY SEND
A SOFTWARE SWITCH TO TURN OFF THE DVR FUNCTIONALITY, CORRECT?
A I DON’T KNOW THAT I’M QUALIFIED TO ANSWER. I DON’T THINK
IT’S QUITE THAT SIMPLE, BUT I THINK IN GENERAL -- I HAVE A
GENERAL UNDERSTANDING THAT WE WOULD SEND SOME SOFTWARE
DOWNLOADS TO TURN THE BOXES –- TO TURN SOME FUNCTIONALITY OFF.
Q AND IT COULD BE DONE RELATIVELY PROMPTLY, CORRECT?
A I’M NOT THE RIGHT PERSON TO ASK THAT QUESTION.
MR. CHU: NO FURTHER QUESTIONS, YOUR HONOR.
Here's the latest installment of Days of Charlie's Lies. Last we heard from our hero Charlie he testified that he thought Judge Folsom was a moron and made "multiple mistakes" and Charlie would be vindicated by the Court of Appeals.
In this installment, Morgan Chu, (a guy that actually passed the Bar Exam as opposed to getting his law license off the internet) continues to show more of Charlie's "good will" and gets Charlie to admit that he knew the "herculean" effort was supposed to go in front of judge for a ruling before he took it upon himself to disregard Judge Folsom's order to shut his boxes down (contempt).
Mr Chu also touches upon the "good will" of Charlie by getting him to explain how he started a $100 million ad campain, while stayed for infringing, on how his DVR's are "better then Tivo's".
We also have some objections by Mr. McElhinny (another real lawyer) (which are all overruled of course) sprinkled in to let us know he's on the job and EARNING his money.
Once again, I'm no lawyer, nor do I play one on the internet, but you just have to laugh at how Charlie "dummies up" when asked an uncomfortable question or caught in one of his lies. There is a lot of "I don't know, "I'm not a legal expert" (in real life or the internet), "Could you repeat the question" etc.
Anyway, enjoy the latest installment of The Days of Charlie's Lies....
Q NOW, IN OCTOBER OF 2006 ECHOSTAR BEGAN TO DOWNLOAD
MODIFIED SOFTWARE, CORRECT?
A NO.
Q ON OCTOBER 24, 2006, WAS ANY MODIFIED SOFTWARE
TRANSMITTED TO ECHOSTAR DVR BOXES THAT ARE AT ISSUE IN THIS
CASE?
A YES.
Q AND THAT INCLUDED CHANGES TO THE SOFTWARE THAT ALLEGEDLY
DESIGNED AROUND THE TIVO PATENT CLAIMS, CORRECT?
A I BELIEVE WHAT WE DID WAS DOWNLOADED TO A SMALL NUMBER OF
BOXES, DISABLED THE EXISTING SOFTWARE, REBOOTED THE BOX, AND
DOWNLOADED NEW SOFTWARE.
Q AND OVER THE NEXT SEVERAL MONTHS YOU ENDED UP
TRANSMITTING TO WHAT YOU CONSIDERED TO BE MILLIONS OF BOXES,
IS THAT CORRECT, AFTER YOU FIXED THE BUGS AND THE LIKE?
A YES.
Q AND THROUGHOUT THIS PERIOD OF TIME THERE WAS NO
INFORMATION GIVEN TO THE DISTRICT COURT OR THE COURT OF
APPEALS THAT YOU BELIEVED THAT YOU HAD MODIFIED SOFTWARE THAT
SUPPOSEDLY DESIGNED AROUND THE TIVO PATENT CLAIMS, CORRECT?
A I DON’T THINK SO, NO.
Q AND AT THIS POINT IN TIME, STARTING OCTOBER OF 2006 GOING
FORWARD, YOU HAD ACTUALLY ALREADY MONTHS EARLIER HAD GOTTEN
OFFICIAL OPINION LETTERS FROM FISH & RICHARDSON ON WHICH YOU
WERE RELYING TO ASSERT THAT YOUR SUPPOSED DESIGN-AROUNDS WERE
SUCCESSFUL. IS THAT CORRECT?
A YES.
Q AND YOU NEITHER INFORMED THE DISTRICT COURT OR THE
FEDERAL CIRCUIT OF THAT, CORRECT?
A NO.
Q AND IF THE DESIGN-AROUNDS WERE SUCCESSFUL, THEN THE
GRIEVOUS INJURY OF $90 MILLION DOLLARS PER MONTH OR MORE WOULD
NOT APPLY IN YOUR OPINION, CORRECT?
A I AM NOT SURE I TOTALLY UNDERSTAND THAT QUESTION.
Q WELL, IF THE SOFTWARE WAS NO LONGER INFRINGING, THEN FROM
YOUR POINT OF VIEW YOU COULD CONTINUE TO COLLECT REVENUE FROM
THE DVRS THAT WERE THE SUBJECT MATTER OF THIS LAWSUIT. IS
THAT RIGHT?
A HYPOTHETICALLY, THAT –- DO WE HAVE A TIME FRAME WE ARE
TALKING ABOUT?
Q FROM THE TIME OF THE INJUNCTION IN MID-2006 GOING FORWARD
UNTIL THE FEDERAL CIRCUIT RENDERED ITS FINAL DECISION IN
JANUARY OF 2008, IF YOU IN FACT HAD NON-INFRINGING SOFTWARE,
FROM YOUR POINT OF VIEW, THEN AN INJUNCTION OUGHT NOT TO APPLY
AGAINST THAT SOFTWARE?
A I AGREE IF WE HAD NON-INFRINGING SOFTWARE THAT AN
INJUNCTION SHOULDN’T APPLY AGAINST IT.
Q AND YOU UNDERSTAND THAT YOU OBTAINED AN EMERGENCY STAY OF
HIS HONOR’S PERMANENT INJUNCTION FROM THE FEDERAL CIRCUIT BY
ASSERTING THAT YOU WOULD BE GRIEVOUSLY INJURED TO THE TUNE OF
AT LEAST $90 MILLION DOLLARS A MONTH. IS THAT RIGHT?
A THAT’S CORRECT.
Q BUT YOU FAILED TO DISCLOSE AT ANY TIME TO THE FEDERAL
CIRCUIT OR TO ANY COURT THE FACT THAT YOU THOUGHT YOU ALREADY
HAD A NON-INFRINGING DESIGN, AND SOME MONTHS LATER HAD IN FACT
DOWNLOADED IT TO THE ECHOSTAR DVRS. IS THAT CORRECT?
A THAT’S A COMPOUNDED QUESTION, SO LET ME TAKE THEM –- TAKE
EACH ONE SEPARATELY. WE –-
Q LET ME BREAK IT UP. PERHAPS YOU ARE RIGHT, IT WAS
COMPOUND. YOU NEVER INFORMED THE FEDERAL CIRCUIT THAT YOU HAD
DOWNLOADED WHAT YOU CONSIDERED TO BE NON-INFRINGING SOFTWARE.
IS THAT RIGHT?
A I DON’T BELIEVE SO.
Q EVEN THOUGH THE FEDERAL CIRCUIT’S STAY ORDER THAT YOU
OBTAINED WAS IN EFFECT AFTER YOU HAD DOWNLOADED WHAT YOU
CONSIDERED TO BE NON-INFRINGING SOFTWARE. IS THAT CORRECT?
A I AM NOT SURE I HEARD THAT CORRECT. WE DOWNLOADED THE
SOFTWARE AFTER THE STAY WAS IN EFFECT. IS THAT WHAT YOU SAID?
THE DOWNLOAD OF THE SOFTWARE WAS AFTER, AFTER THE STAY HAD
BEEN ISSUED.
Q YES. BUT THE BASIS FOR THE STAY, AT LEAST THE ARGUMENT
BY ECHOSTAR, WAS THAT IT WOULD HURT ECHOSTAR TO THE TUNE OF
$90 MILLION DOLLARS A MONTH. YOU NEVER PROVIDED THE
ADDITIONAL INFORMATION THAT HAD BEEN CONCEALED UP TO THAT DATE
THAT YOU HAD DOWNLOADED THE SOFTWARE. IS THAT RIGHT?
MR. MCELHINNY: THAT ARGUMENT –- THAT’S
ARGUMENTATIVE, CONCEALING.
THE COURT: WELL, REPHRASE WITHOUT USING CONCEALED.
Q (BY MR. CHU
OKAY. YOU NEVER COMMUNICATED TO ANY COURT THAT YOU HAD DOWNLOADED WHAT YOU CONSIDERED TO BE NON-
INFRINGING SOFTWARE?
A YES, WE HAVE COMMUNICATED TO THIS COURT HERE THAT WE HAVE
DONE THAT.
Q SIR, WHILE THE STAY WAS IN PLACE FROM MID-2006 TO THE
BEGINNING OF 2008, YOU NEVER COMMUNICATED TO ANY COURT AT ANY
TIME THAT YOU HAD DOWNLOADED WHAT YOU CONSIDERED TO BE NON-
INFRINGING SOFTWARE. IS THAT CORRECT?
A THAT’S CORRECT.
Q AND ONE OF THE CONSIDERATIONS IN MAKING THAT DECISION WAS
THAT YOU KNEW THAT TIVO OR ONE OF THE COURTS WOULD SAY, LET’S
SEE IF IT’S REALLY NON-INFRINGING INSTEAD OF LETTING ECHOSTAR
DECIDE THAT ON ITS OWN. THAT WAS A CONSIDERATION IN YOUR
DECISION-MAKING, CORRECT?
A I DON’T THINK SO.
Q SO DURING THE PERIOD OF TIME OF THE STAY, IS IT CORRECT
THAT YOU LAUNCHED AN ADVERTISING CAMPAIGN THAT WAS
SPECIFICALLY AIMED AT TIVO?
A I WOULDN’T PHRASE IT THAT WAY, NO.
Q YOU LAUNCHED AN ADVERTISING CAMPAIGN THAT FOR THE FIRST
TIME SPECIFICALLY BEGAN TO USE THE TIVO NAME AS AN INTEGRAL
PART OF THE ADVERTISEMENT. IS THAT CORRECT?
A I THINK WE HAD USED TIVO’S NAME BEFORE.
Q YOU LAUNCHED AN ADVERTISING CAMPAIGN WHEN THE STAY WAS –-
AFTER YOU HAD SECURED THE STAY THAT WAS TOUTING THE ECHOSTAR
DVR BOXES AS, QUOTE, BETTER THAN TIVO. IS THAT CORRECT?
A I BELIEVE WE RAN AN ADVERTISEMENT THAT DID USE
TERMINOLOGY BETTER THAN TIVO, YES.
Q SO LET’S SEE MR. ERGEN’S SLIDE 2. THIS IS AN EXAMPLE OF
THAT ADVERTISING CAMPAIGN. IS THAT CORRECT?
THE COURT: IS THERE A DATE AVAILABLE FOR THAT?
MR. CHU: LET ME SEE IF I HAVE ONE. LET ME ASK MR.
ERGEN.
Q (BY MR. CHU
DO YOU RECALL THAT YOU BEGAN THIS ADVERTISING CAMPAIGN USING ADVERTISINGS –- ADVERTISEMENTS,
SUCH AS THE ONE WE HAVE ON THE SCREEN, AFTER THE STAY FROM THE
FEDERAL CIRCUIT WAS IN EFFECT?
A YES.
Q DO YOU RECALL SPENDING MORE THAN A MILLION DOLLARS ON
THAT?
A ON THE TOTAL CAMPAIGN, YES, WE SPENT MORE THAN A MILLION
DOLLARS.
Q WELL, MORE THAN FIVE MILLION?
A YES.
Q MORE THAN TEN MILLION?
A YES.
Q MULTIPLE TENS OF MILLIONS?
A YES.
Q MORE THAN FIFTY MILLION?
A I BELIEVE SO, YES.
Q AND YOU CONSIDER TIVO TO BE A DIRECT COMPETITOR WITH
RESPECT TO DVRS. IS THAT CORRECT?
A YES.
Q IT WAS TO YOUR FINANCIAL BENEFIT TO PUT OFF THE DATE AS
TO WHEN THERE COULD BE A COURT HEARING WITH RESPECT TO THE
ALLEGEDLY DESIGNED AROUND SOFTWARE DURING THE PERIOD OF THE
STAY. IS THAT CORRECT?
A I DON’T KNOW IF THAT’S TRUE OR NOT.
Q WELL, YOU KNEW YOU COULD HAVE COME TO COURT AND SAID, WE
THINK WE HAVE DESIGNED AROUND THE SOFTWARE, AND BEFORE WE
DEPLOY IT WE WOULD LIKE THE COURT TO DECIDE WHETHER IT REALLY
IS A DESIGN-AROUND. YOU KNEW THAT WAS AN OPTION, CORRECT?
A I GUESS THEORETICALLY THAT WAS AN OPTION, YES.
Q AND YOU COULD HAVE DONE THAT IN MID-2006 WHEN THE
PERMANENT INJUNCTION WAS FIRST ENTERED IMMEDIATELY AFTER THE
FEDERAL CIRCUIT STAYED THE APPLICATION OF THE INJUNCTION,
CORRECT?
A I DON’T THINK SO.
Q YOU COULDN’T DO THAT? YOU WERE PHYSICALLY STOPPED FROM
RAISING THE ISSUE?
A WE DIDN’T HAVE A DESIGN-AROUND IN MID-2006.
Q BY LATER 2006, YOU HAD THE DESIGN DOCUMENTATION, YOU HAD
BEGUN TO DOWNLOAD SOFTWARE, YOU HAD THE FISH & RICHARDSON
OPINIONS, CORRECT?
A LATER IN 2006, WE DID.
Q AND AT THAT POINT YOU COULD HAVE COME FORWARD TO TIVO AND
THE COURTS AND SAID, WE THINK WE HAVE DESIGNED AROUND. LET’S
SEE IF IT’S TRUE. LET’S GET THIS DECIDED FAIR AND SQUARE.
THAT WAS A POSSIBILITY. YOU COULD HAVE COME FORWARD WITH THAT
INFORMATION, CORRECT?
A I DON’T KNOW IF THERE WAS ANY LAW TO PREVENT YOU FROM
DOING THAT. I DON’T KNOW.
Q YOU COULD HAVE COME FORWARD WITH THAT INFORMATION?
A SO I THINK BASED ON MY MIND, BASED ON WHAT I KNOW, I
THINK WE COULD HAVE DONE THAT.
Q THANK YOU. AND THE FACT OF THE MATTER IS THAT IT WAS
DURING THAT PERIOD OF TIME THE ONLY PUBLIC STATEMENTS ABOUT A
DESIGN-AROUND WERE TO THE EFFECT THAT YOU WERE TRYING TO DO A
DESIGN-AROUND. IS THAT CORRECT?
A AT THE TIME THAT’S WHAT WE WERE TRYING TO DO, YES.
Q AND THE ONLY TIME YOU FIRST ANNOUNCED THAT YOU SUPPOSEDLY
HAD A DESIGN-AROUND WAS AT THE END OF THE ROAD WHEN THE
FEDERAL CIRCUIT HAD AFFIRMED, THEN SHORTLY AFTER THE UNITED
STATES SUPREME COURT REFUSED TO HEAR YOUR FURTHER APPEAL TO
THAT BODY, CORRECT?
A MY RECOLLECTION IS THAT SHORTLY AFTER THE COURT OF
APPEALS’ FINAL VERDICT, WE DID MAKE A DISCLOSURE THAT WE HAD
IN FACT IMPLEMENTED A DESIGN-AROUND.
Q SO DURING THIS PERIOD FROM THE ORIGINAL ISSUANCE OF THE
PERMANENT INJUNCTION TO THE FINAL DECISION OF THE FEDERAL
CIRCUIT, YOU WERE AGGRESSIVELY MARKETING THE ECHOSTAR DVRS,
CORRECT?
A WELL, I THINK WE WERE AGGRESSIVELY MARKETING OUR SERVICE.
AS A SMALL PART OF THAT, IT’S KIND OF BLOWN UP IN THE PICTURE
THERE, AS A SMALL PART OF THAT WE HIGHLIGHTED THE EDITOR’S
AWARD THAT WE HAD WON OVER TIVO FROM -- FROM A THIRD PARTY.
Q NOW, YOU HAVE SOME UNDERSTANDING OF WHAT THE SUPPOSED
DESIGN-AROUNDS ARE. IS THAT CORRECT?
A YES, I DID.
Q FOR EXAMPLE, YOU KNOW DETAILS SUCH AS THE SUPPOSED
DESIGN-AROUND FOR THE 50X BOXES AS WELL AS THE BROADCOM BOXES
INCLUDES ECHOSTAR’S POSITION THAT THOSE BOXES NO LONGER DO
INDEXING. IS THAT CORRECT?
A I THINK IN GENERAL THAT’S –- IN GENERAL THAT’S AN
ACCURATE STATEMENT, YES.
Q YOU ALSO HAVE THE UNDERSTANDING SINCE YOU –- THIS IS THE
THIRD TRIAL INVOLVING TIVO V. ECHOSTAR THAT YOU’VE TESTIFIED
AT, THAT PATENT CLAIMS ARE CONSTRUED BY THE COURT, CORRECT?
A I KNOW THAT THE COURT CONSTRUES PATENT CLAIMS. THE JURY
MAY AS WELL. I’M NOT SURE. I DON’T KNOW IF IT’S JUST LIMITED
TO THE COURT. I THINK MAYBE THE JURY DOES AS WELL. I MAY BE
WRONG ON THAT.
Q IN REACHING YOUR DECISION NOT TO DISABLE THE 50X BOXES,
DID YOU AT ALL CONSIDER THE FACT THAT THE ONLY BASIS ON WHICH
THEY ARE SUPPOSEDLY NON-INFRINGING IS THE FACT THAT THEY DO
NOT DO INDEXING?
A WELL, I DON’T THINK I CAN ANSWER THAT YES OR NO.
Q BUT YOU DO UNDERSTAND THAT THAT IS THE REASON THAT’S
BEING PUT FORWARD AS TO WHY THEY SUPPOSEDLY DO NOT INFRINGE
THE 50X BOXES?
A I HAVE A GENERAL UNDERSTANDING OF WHY WE BELIEVE THE 50X
BOXES DO NOT NOW INFRINGE.
Q AND YOU MADE YOUR DECISION NOT TO DISABLE THOSE BOXES
DESPITE THE FACT THAT YOU DO NOT KNOW IF THE COURT HAS
INTERPRETED CLAIM 31 AS REQUIRING INDEXING?
A AGAIN, I DON’T BELIEVE I CAN ANSWER THAT IN YES OR NO.
Q I WOULD LIKE TO READ YOUR DEPOSITION TRANSCRIPT FROM
FEBRUARY OF THIS YEAR, 2009, PAGE 17, LINE 4-10:
QUESTION: AND IS IT YOUR UNDERSTANDING THAT THE
COURT HAS INTERPRETED CLAIM 31 AS REQUIRING INDEXING?
ANSWER: I DON’T THINK I –- I DON’T WANT TO –- I’M
NOT AN EXPERT FOR WHAT THE COURT HAS RULED, AND I THINK THE
COURT KNOWS HOW THEY HAVE RULED.
Q NOW, YOU ALSO HAVE THE UNDERSTANDING THAT THERE IS A
PARTICULAR KIND OF BUFFERING SYSTEM THAT IS IN THE MODIFIED
SOFTWARE. IS THAT CORRECT?
A I HAVE A GENERAL UNDERSTANDING OF BUFFERING. I SHOULD
SAY FLOW CONTROL. I KNOW IT SOMEHOW RELATES TO BUFFERING.
Q AND YOU UNDERSTAND THAT IT’S ECHOSTAR’S POINT OF VIEW AND
THAT IT SHOULD NOT BE HELD IN CONTEMPT BECAUSE IT DOES NOT USE
A BUFFERING SYSTEM TO CONTROL THE OVERFLOW OF DATA. IS THAT
CORRECT?
A MY UNDERSTANDING IS MAYBE A LITTLE DIFFERENT THAN THAT.
MY UNDERSTANDING IS THAT WE DO –- WE DO NOT HAVE THE ABILITY
TO NOT –- TO SHUT OFF DATA, AND THAT WE CAN HAVE OVERFLOWING
CONDITIONS.
Q AND THAT’S A REASON SUPPOSEDLY FROM ECHOSTAR’S POINT OF
VIEW THAT IT SHOULD NOT BE HELD IN CONTEMPT. IS THAT RIGHT?
A BASED ON OUR OUTSIDE LEGAL COUNSEL AND BASED ON –-
Q SIR, CAN YOU ANSWER FAIRLY YES OR NO?
A CAN YOU REPEAT THE QUESTION?
Q IT’S JUST A GENERAL QUESTION. ONE OF THE REASONS WHY FOR
THE BROADCOM BOXES THAT YOU DO NOT BELIEVE YOU SHOULD BE HELD
IN CONTEMPT IS BECAUSE A PARTICULAR BUFFERING SYSTEM IS BEING
USED THAT DOES NOT INFRINGE, CORRECT?
A AGAIN, IN MY MIND IT’S A LITTLE –- I’M NOT QUITE AS
COMPLEX AS THAT. I WOULD SAY IT A DIFFERENT WAY. AS I STATED
EARLIER IN MY ANSWER, I BELIEVE WE DO NOT PRACTICE FLOW
CONTROL. WE DON’T HAVE THE ABILITY TO DO FLOW CONTROL.
Q AND THAT’S RELATED TO THE BUFFERING SYSTEM?
A AND MY UNDERSTANDING IS THAT IT’S SOMEHOW RELATED TO
BUFFERING, YES.
Q AND YOU DON’T KNOW, DESPITE THE FACT THAT YOU’VE DECIDED
NOT TO DISABLE THOSE BROADCOM DVRS, YOU DON’T KNOW IF THE
COURT’S CLAIM CONSTRUCTION REQUIRES A PARTICULAR BUFFERING
SYSTEM. IS THAT CORRECT?
MR. MCELHINNY: IT’S COMPOUND, AND THE INTRODUCTION
IS ARGUMENTATIVE AND INCORRECT, YOUR HONOR.
MR. CHU: I’LL RESTATE IT.
THE COURT: REPHRASE IT.
Q (BY MR. CHU
YOU DO NOT KNOW WHETHER THE COURT’S CLAIM CONSTRUCTION REQUIRES A PARTICULAR BUFFERING SYSTEM. IS THAT
FAIR?
A I DON’T HOLD MYSELF OUT AS A LEGAL EXPERT, NO.
Q SO YOU DON’T KNOW ONE WAY OR THE OTHER WHETHER IT’S
REQUIRED?
A WELL, YES, I HAVE AN UNDERSTANDING OF THAT. WE GOT
OUTSIDE LEGAL COUNSEL TO LOOK AT THOSE ISSUES AND –-
Q BUT –-
A –- BASED ON EVERYTHING --
Q EXCUSE ME.
A -- THAT I’VE BEEN TOLD AND I’VE BEEN RELYING ON –-
THE COURT: GENTLEMEN, GENTLEMEN, DON’T –- LET HIM
FINISH.
MR. CHU: EXCUSE ME. OKAY.
THE COURT: IF YOU HAVE AN OBJECTION, RAISE IT.
OTHERWISE, LET HIM FINISH HIS ANSWER AND ASK YOUR NEXT
QUESTION.
MR. CHU: OKAY. THANK YOU, YOUR HONOR.
A AND SO –-
A SO I RELIED ON THOSE EXPERTS.
Q WAS IT THE VIEW OF SOME PEOPLE AT ECHOSTAR THAT YOU
COULDN’T CONCLUDE THAT YOU DIDN’T INFRINGE AND THAT YOU COULD
CONTINUE TO DEPLOY THE SPECIFIC DVRS THAT ARE AT ISSUE IN THIS
HEARING UNTIL A COURT SAID, YES INDEED, IT IS A VALID
WORK-AROUND?
MR. MCELHINNY: I’M SORRY, YOUR HONOR, THAT WAS SO
COMPOUND THAT ACTUALLY I’VE LOST IT, SO I DON’T –-
MR. CHU: I’LL RESTATE IT.
Q (BY MR. CHU
WAS IT EVER EXPRESSED AT ECHOSTAR THAT WHAT YOU HAD TO DO OR SHOULD DO IS TO GO TO COURT TO FIND OUT
WHETHER YOU HAD A VALID WORK-AROUND RATHER THAN CONTINUING ON
WITHOUT DISABLING THE DVRS?
A I DON’T THINK THE ANSWER TO THAT QUESTION IS –- OBVIOUSLY
THE ANSWER TO THAT QUESTION IS NO.
Q I’D LIKE TO READ PART OF A STATEMENT BY DAVID MOSKOWITZ.
BY THE WAY, WHO IS DAVID MOSKOWITZ?
A DAVID MOSKOWITZ WAS OUR FORMER –- WAS A GENERAL COUNSEL
TO ECHOSTAR UP UNTIL ABOUT 2007.
Q AND –-
MR. MCELHINNY: AT THE MOMENT THERE IS NO FOUNDATION
TO READ THIS OR TO USE IT FOR IMPEACHMENT, YOUR HONOR.
MR. CHU: WELL, I’M GOING TO ASK WHETHER IT REFRESHES
HIS RECOLLECTION ON THE SUBJECT MATTER OF MY PRIOR QUESTION.
THE COURT: OVERRULED. YOU MAY READ IT. AND WHAT IS
THIS FROM?
MR. CHU: THIS IS FROM AN ANALYST CALLED TYPICALLY
AFTER AN EARNINGS ANNOUNCEMENT, AND THERE ARE STATEMENTS MADE
BY COMPANY OFFICERS.
Q (BY MR. CHU
IS THAT GENERALLY TRUE, MR. ERGEN? A YES.
Q DOES IT REFRESH YOU –-
THE COURT: I MEAN, IS THIS AN EXHIBIT OR –-
MR. CHU: YES.
THE COURT: WHICH ONE?
MR. CHU: IT IS 3313, AND THIS IS AT PAGE 8 AND IT’S
AT THE BOTTOM OF THE PAGE. IT ACTUALLY SAYS UNKNOWN SPEAKER
AS IS OFTEN THE CASE IN TRANSCRIPTS, BUT I THINK WE ARE FAIRLY
CONFIDENT. CAN WE JUST BLOW THAT UP, ON THE LAST BRACKET THAT
SAYS UNKNOWN SPEAKER?
Q (BY MR. CHU
SO LET ME JUST READ IT. QUOTE: MY UNDERSTANDING IS MOST OF THAT HAS COME THROUGH THE NEWS CORP
RELATIONSHIP VERSUS THE DIRECT TV RELATIONSHIP -- THIS IS
RESPONDING TO PART OF A QUESTION –- AND WE CONTINUE TO LOOK AT
WAYS AGAIN TO THE EXTENT WE HAVE A BROADBAND PLATFORM AND WE
WILL MAKE MORE ANNOUNCEMENTS AS WE GET FURTHER ALONG THAT
PATH. BUT I WOULDN’T ASSUME THAT OUR SILENCE MEANS THAT WE
ARE NOT ACTIVELY PURSUING THINGS THAT CAN ENHANCE OUR
EXPERIENCE AND BE MORE COMPETITIVE IN THE MARKETPLACE. AND
IT’S AGAIN -- HOLD ON A MOMENT, I THINK WE ARE ON THE WRONG
PAGE. I APOLOGIZE. I THINK I WAS A PAGE OFF. OKAY.
Q MR. ERGEN, WOULD YOU READ THAT ALOUD?
A WELL, WE ARE SPENDING ENGINEERING RESOURCES TO TRY TO
DEVELOP WORK-AROUNDS WHICH WOULD MAKE OUR PRODUCTS NON-
INFRINGING EVEN UNDER THE ANALYSIS THE DISTRICT COURT GAVE,
AND WE’VE MADE GOOD PROGRESS IN THAT REGARD, BUT WE’RE NOT
FINISHED WITH THAT DEVELOPMENT. UNTIL THAT DEVELOPMENT IS
COMPLETED AND IMPLEMENTED AND THE COURT CONCLUDES THAT, YES,
INDEED IT IS A VALID WORK-AROUND, WE CAN’T SAY WE’VE GOT ONE.
BUT WE ARE CERTAINLY DOING ALL THE RIGHT THINGS THAT WE CAN
PRUDENTLY –- WE CAN PRUDENTLY TO LOOK AT THIS FROM EVERY ANGLE
WE CAN.
Q SO THAT VIEW WAS EXPRESSED AT ECHOSTAR BY A SENIOR
OFFICER THAT YOU CAN’T SAY YOU’VE GOT A VALID WORK-AROUND
UNTIL A COURT SAYS YOU’VE GOT ONE. IS THAT RIGHT?
A WELL, I THINK IN THE CONTEXT OF HIS SPEAKING, I THINK IT
SPEAKS FOR ITSELF, AND I THINK THAT –- I THINK THAT THE
UNKNOWN SPEAKER PROBABLY WAS AN EXECUTIVE OF ECHOSTAR. AND IT
PROBABLY WAS A CONFERENCE CALL, AS YOU SAID.
Q SIR, IF THIS COURT DECIDES THAT ECHOSTAR HAS BEEN IN
VIOLATION OF ITS INJUNCTION SINCE THE STAY WAS LIFTED, HOW
QUICKLY COULD YOU DISABLE THE DVR BOXES THAT ARE THE SUBJECT
MATTER OF THE INJUNCTION?
A I DON’T KNOW EXACTLY.
Q BUT IT IS A SOFTWARE DOWNLOAD WHERE YOU ESSENTIALLY SEND
A SOFTWARE SWITCH TO TURN OFF THE DVR FUNCTIONALITY, CORRECT?
A I DON’T KNOW THAT I’M QUALIFIED TO ANSWER. I DON’T THINK
IT’S QUITE THAT SIMPLE, BUT I THINK IN GENERAL -- I HAVE A
GENERAL UNDERSTANDING THAT WE WOULD SEND SOME SOFTWARE
DOWNLOADS TO TURN THE BOXES –- TO TURN SOME FUNCTIONALITY OFF.
Q AND IT COULD BE DONE RELATIVELY PROMPTLY, CORRECT?
A I’M NOT THE RIGHT PERSON TO ASK THAT QUESTION.
MR. CHU: NO FURTHER QUESTIONS, YOUR HONOR.
Snip
I can assure you nothing was edited or changed in any way, shape or form nor have I cherry picked anything. My posts have been cut and pasted directly from the transcript in the order it was at the hearing.
So far all I have posted was Morgan Chu's direct of Charlie, starting from the beginning. I will post Mr McElhinny's direct and Mr. Chu's re-direct in due time.
This just tells you how clueless this dude is, he seems to think as long as he posts all TiVo's cross examinations, without any edit, that would be good enough.
This dude can't even understand what Ts7 was saying. If you only post TiVo's cross examinations, not any E*'s cross examinations, then you are totally unfair, so please some of your follow TiVo folks pass along this message to educate him for once. Do not continue to let him embarrass you.
As far as the rest of the crap, I will not waste my time, I have already responded to such earlier as far as good faith and bad faith are concerned.
Now I will give Thomas22's quotes more attention in the next post. But understand, even he cherry picked the content of the transcripts as I indicated above, but at least his choice is more relevant to the issue of law.
This dude can't even understand what Ts7 was saying. If you only post TiVo's cross examinations, not any E*'s cross examinations, then you are totally unfair, so please some of your follow TiVo folks pass along this message to educate him for once. Do not continue to let him embarrass you.
As far as the rest of the crap, I will not waste my time, I have already responded to such earlier as far as good faith and bad faith are concerned.
Now I will give Thomas22's quotes more attention in the next post. But understand, even he cherry picked the content of the transcripts as I indicated above, but at least his choice is more relevant to the issue of law.
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I did not mean to suggest that you edited or changed anything and have no reason to think that has occurred. Do I suspect "Cherry picking"? Perhaps, but that will depend on how much of of the rest of the transcript is posted and when. I only encourage you to take the "high road" in this discussion!
Again, - and this is a general statement not directed at any one in particular - picking only particular excerpts that make one's point without at least providing an accurate background of the conversation pre/post, is deceptive. It's like the old theatrical ad hawks who manipulate words of the critics - if the critic said of the play "this was the most fantastic display of incompetence", the ad hawk would spin it "Critics say 'FANTASTIC'!". The ad is technically correct, but is entirely deceptive.
At any rate, I do appreciate the posts and lively discussion!
- Status
