TIVO vs E*

[jacmyoung]

Now to follow up on my previous post on the issue of the witness's credibility and the issue of dispute, let's first be clear of one thing, a contempt proceeding is a summary proceeding in nature, which means the defendant has no due process right in such a proceeding, therefore to grant the mover (TiVo) such motion, TiVo must prove by clear and convincing evidence there is no dispute of facts exists. If there is any dispute exists, the summary judgment motion must be denied.

The following is a description of the summary judgment proceeding:

[ame="http://en.wikipedia.org/wiki/Summary_judgment"]Summary judgment - Wikipedia, the free encyclopedia[/ame]

In order [for E*] to defeat a motion for summary judgment [i.e. this TiVo's contempt motion], the non-moving party [E*] only has to show substantial evidence that a dispute of material facts exists, regardless of the strength of that evidence. For example, if one side [TiVo] on a summary judgment motion can produce the evidence of "a dozen bishops", and the other side [E*] only has the testimony of a known liar, then summary judgment is not appropriate. [TiVo's motion must be denied.] Deciding on the relative credibility of witnesses is a question for trial [which will be in this DE new action if it happens].

Here TiVo is trying to paint E*'s witness as a "liar" because he changed his mind from before, and yet TiVo themselves failed to produce their own "dozen of bishops" to even dispute that "liar."

If one reads the above link and explanation, even if E* produced just one "known liar" and TiVo succeeded in producing a dozen bishops, as long as the "known liar" manages to establish a dispute of facts, the motion will be denied. And yet TiVo did not even produce any of their "bishops" on the PID issue, because TiVo did not even try to argue against the assertion of the E*'s witness on the PID issue because they couldn't, E* was right about the PID issue now, the only thing TiVo did was to tell the judge, he was a liar.

Now if Judge Folsom knows what he is doing, the outcome should be clear.

 

[Thomas22]

Chu (Tivo) :SO WHAT ARE THE EXACT ISSUES THAT ARE GOING TO BE BEFORE THE COURT? LET’S LOOK AT SOME OF THE EVIDENCE. FIRST, THE FRAMEWORK. I’VE ALREADY MENTIONED THAT THE INJUNCTION HAS
BEEN VIOLATED ON ITS FACE, AND THEN THEIR DEFENSE IS, WELL, EVEN THOUGH IT’S VIOLATED ON ITS FACE, AS LONG AS THE PRODUCTS ARE MORE THAN COLORABLY DIFFERENT AND DON’T INFRINGE WE SHOULD BE ABLE TO VIOLATE THE INJUNCTION.

EITHER ONE OF THOSE TWO GROUNDS IS SUFFICIENT TO HOLD THEM IN CONTEMPT, THAT IS, THE VIOLATION ON THE FACE AND IF THE CHANGES ARE NOT MORE THAN COLORABLY DIFFERENT. THEY ESSENTIALLY ARE TRYING TO REWRITE THE COURT’S INJUNCTION. THIS IS THE COURT’S INJUNCTION: DISABLE THE DVR FUNCTIONALITY. THEY WOULD LIKE TO WRITE IN A NEW WORD, INFRINGEMENT, TO SUGGEST THAT THEY COULD DECIDE ON THEIR OWN AND USE SELF-HELP TO DETERMINE WHEN THINGS ARE OR ARE NOT INFRINGING RATHER THAN GIVING US OR YOUR HONOR AN OPPORTUNITY TO DECIDE THOSE ISSUES ON A FULL RECORD TWO AND A HALF YEARS AGO.

THE ISSUES ARE ACTUALLY RELATIVELY SIMPLE. WE THINK THAT ECHOSTAR WILL DO A LOT OF HAND-WAVING AND MAKE IT SOUND LIKE MULTIPLE ISSUES. THERE ARE ONLY TWO DIFFERENT SETS OF BOXES: THE ST CHIP, ST MICROELECTRONICS CHIP BOXES. WE CALL THEM THE DP-50X BOXES. AND THERE IS ONLY ONE ALLEGED CHANGE. AND THAT ALLEGED CHANGE IS THAT THEY HAVE MADE SOME CHANGES, SO THEY NO LONGER DO INDEXING, AND THEREFORE IT IS A MAJOR CHANGE AND THEY NO LONGER INFRINGE.

BUT THE PROBLEM WITH THAT ARGUMENT, AS WE WILL SEE WHEN WE HEAR THE EVIDENCE FROM EXPERT WITNESSES, IS THE WORD INDEXING DOES NOT APPEAR IN THE SOFTWARE CLAIMS 31 AND 61 THAT ARE BEFORE THE COURT. THE CLAIM TERM IS, QUOTE, “PARSING,” END QUOTE. YOUR HONOR INTERPRETED THAT CLAIM TERM PARSING AFTER HARD FOUGHT CLAIM CONSTRUCTION TO MEAN ANALYZE. THAT CLAIM CONSTRUCTION WAS NOT APPEALED TO THE FEDERAL CIRCUIT. IF THEY DISAGREED, THAT WAS THE POINT IN TIME WHERE THEY COULD HAVE SAID TO THE FEDERAL CIRCUIT, PARSING REALLY MEANS INDEXING. THEY DIDN’T DO THAT. AND NOW THE BULK OF THEIR EVIDENCE HAS TO DO WITH THE FACT THAT THEY ARE NOT INDEXING. IT’S NOT A CLAIM TERM, AND IT’S IRRELEVANT. THEY MAKE THE SAME ARGUMENT WITH THE BROADCOM OR 522/625 BOXES, AND THEY MAKE A SECOND ARGUMENT.

THE SECOND ARGUMENT HAS TO DO WITH BUFFERING, OR A CLAIM TERM, AUTOMATIC FLOW CONTROL. AND WE WILL ALSO SEE THAT THEY NEITHER CHALLENGE THE INTERPRETATION OF THIS COURT AND THEY WILL BE PUTTING FORWARD EVIDENCE ON A CLAIM TERM OR CLAIM CONSTRUCTION THAT DOESN’T APPEAR IN THE CLAIMS AND DOESN’T APPEAR IN THIS COURT’S CLAIM CONSTRUCTION, AND INDEED WASN’T EVEN BROUGHT TO THE FEDERAL CIRCUIT.

THESE ARE THE SUBJECTS THAT I WILL BRIEFLY COVER: CHANGE MUST BE ON A CLAIM ELEMENT. THAT MAKES SENSE. AND HERE IS A BASIC AUTHORITY, ADDITIVE CONTROLS. WHEN THERE ARE NO SUBSTANTIAL OPEN QUESTIONS OF –- THERE ARE NO SUBSTANTIAL OPEN QUESTIONS OF INFRINGEMENT IF THERE ARE NO QUESTIONS ON THE ELEMENTS OF THE PERTINENT CLAIM. AND THEN WE ARE GOING TO LOOK AT ECHOSTAR’S ALLEGED CHANGES AND HOW THEY ARE NOT ON THE CLAIM ELEMENTS. THE FIRST ONE IS PARSES. CLAIM 31 AND CLAIM 61 ARE BASICALLY THE SAME IN THIS.

THERE IS THE CLAIM TERM PARSES. THIS IS THE COURT’S CLAIM CONSTRUCTION. PARSE MEANS ANALYZES. AND THIS IS DR. RHYNE, ECHOSTAR’S EXPERT. HE IS BASICALLY SAYING THAT THOSE CLAIMS AT ISSUE, THE TWO CLAIMS AT ISSUE, REQUIRE AN INDEX OR INDEXING, A TERM NOT IN THE CLAIM, NOT IN THE COURT’S CLAIM CONSTRUCTION, NOT APPEALED. HERE IS WHAT ECHOSTAR IS TRYING TO DO. THEY ARE TAKING THE CLAIM TERM AND THEY ARE TRYING TO REWRITE IT. THE TIME TO DO THAT WAS BEFORE YOUR HONOR AT CLAIM CONSTRUCTION OR BEFORE THE FEDERAL CIRCUIT.

THE PRIOR FINDINGS AND CLAIM CONSTRUCTION ARE, OF COURSE, LAW OF THE CASE. THIS IS NOT LIKE A PLAYGROUND GAME AMONG TEENAGERS WHERE SOMEONE CAN CALL A DO-OVER. NOW, WHERE DO THEY GET THIS INDEXING FROM? WE WILL HEAR ABOUT IT IN MORE DETAIL, BUT THEY GET IT FROM AN ARGUMENT, A DEBATE, EVIDENCE THAT WAS PROFFERED BY BOTH SIDES WITH RESPECT TO CLAIM 1, A HARDWARE CLAIM NOT BEFORE THIS COURT IN THIS HEARING. NOW, THE EVIDENCE WILL SHOW THAT NOT ONLY PARSES MEANS ANALYZES BUT ALL THE EXPERTS AT TRIAL TESTIFIED THAT ECHOSTAR PARSES. AND THIS HAS TO DO WITH WHAT’S CALLED A PID FILTER.THE PID STANDS FOR PACKET IDENTIFICATION. IT IDENTIFIES TWO THINGS. FIRST, THE ACTUAL PROGRAM THAT THE CONSUMER WOULD WATCH. ESPN IS AN EXAMPLE. AND THEN SECOND, WHETHER THE PACKET CONTAINS INFORMATION THAT IS AUDIO OR VIDEO.

THERE ARE PID FILTERS IN ALL THE ECHOSTAR BOXES. THEY DO PARSING. THEY DO ANALYZING. AND HERE IS THE EVIDENCE: DR. STORER AT THE FIRST JURY TRIAL STATED THAT THE PID FILTERING OPERATION IS PARSING. AND THIS WAS A POINT THAT ECHOSTAR WAS MAKING ON ITS CROSS EXAMINATION OF PROFESSOR STORER. DR. RHYNE, ECHOSTAR’S EXPERT, WHEN ASKED WHETHER THE ECHOSTAR PRODUCTS DO ACTUALLY PARSE, HE SAID THE PID FILTERS DO A PARSING. THERE IS NO ALLEGED CHANGE TO THE PID FILTERS. THE PID FILTERING THAT IS RESPONSIBLE FOR THE PARSING, IS THE QUESTION. YES. AND HE SPECIFICALLY SAID IT INCLUDED BOTH THE ST AND BROADCOM CHIPS THAT ARE AT ISSUE TODAY.

THE COURT: WELL, WAS THIS INDEXING ISSUE, WAS THAT A THEORY OF CLAIM CONSTRUCTION PUT FORTH BY ECHOSTAR IN THE INITIAL CONSTRUCTION, OR HAS THIS ARISEN AT THIS STAGE OF THE PROCEEDINGS?

MR. CHU: IT WAS NEVER PUT FORWARD WITH RESPECT TO THE SOFTWARE CLAIMS.

THE COURT: AND I AM TALKING IN TERMS OF THE SOFTWARE CLAIMS.

MR. CHU: IT WAS NEVER PUT FORWARD. IT WAS PUT FORWARD WITH RESPECT TO A WORD SEPARATED THAT APPEARED IN
CLAIM 1, THE HARDWARE CLAIM. AND HERE IS DR. POLISH, ECHOSTAR’S EXPERT AT THE JURY TRIAL. HE WAS ASKED WHETHER PID FILTERING IS PARSING WITHIN THE MEANS OF CLAIM 31 AND 61, AND HE SAID, YES. AND THOSE ARE
THE TWO CLAIMS AT ISSUE. TWO OTHER EXPERTS, A DR. GIBSON FROM TIVO AND A DR. JOHNSON WHO WAS A SOFTWARE EXPERT FROM ECHOSTAR WHO IS NOT TESTIFYING AT THIS HEARING, BOTH REFER TO PID FILTERING AS
BEING PART OF THE PHYSICAL DATA SOURCE. AND THE PHYSICAL DATA SOURCE IS WHAT DOES THE PARSING IN THE CLAIM. SO ALL FIVE EXPERTS, THREE FROM ECHOSTAR, TWO FROM TIVO, ALL AGREE THAT PID FILTERING DOES PARSING.

NOW, ECHOSTAR, IN DOING THEIR DESIGN-AROUND, THEY HAD THIS PARTICULAR DOCUMENT AND IT DESCRIBED THE EFFORTS OF THE SOFTWARE ENGINEERS AS DRAFTED BY THE ENGINEERS AS BEING SOMETHING THAT DOES PARSING.
BUT, WA-LA, THEY MADE A CHANGE. THE SAME DOCUMENT CHANGED THE TITLE FROM PARSING TO BRUTE-FORCE DVR. I WONDER HOW THAT CHANGE CAME INTO BEING. SO THE INDEXING ARGUMENT IS IRRELEVANT FOR THE ST BOX, AND OF COURSE IRRELEVANT FOR THE BROADCOM BOXES.

 

[Richard Cranium]

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!

Once again, I started my posts from the beginning of Charlie's testimony. It's broken into 3 parts, that's all. The only think I left out was in the first post and all it was was the swearing in of Charlie.

I don't understand how anyone would think that's cherry picking.

 

[jacmyoung]

Chu (Tivo) :SO WHAT ARE THE EXACT ISSUES THAT ARE GOING TO BE BEFORE THE COURT? LET’S LOOK AT SOME OF THE EVIDENCE. FIRST, THE FRAMEWORK. I’VE ALREADY MENTIONED THAT THE INJUNCTION HAS
BEEN VIOLATED ON ITS FACE,

Yeah, the same old from day one.

AND THEN THEIR DEFENSE IS, WELL, EVEN THOUGH IT’S VIOLATED ON ITS FACE,

Wrong! E* never said they violated on the face, E* said they obeyed the order just fine. Typical putting words in the other's mouth.

AS LONG AS THE PRODUCTS ARE MORE THAN COLORABLY DIFFERENT AND DON’T INFRINGE WE SHOULD BE ABLE TO VIOLATE THE INJUNCTION.

Is this guy serious? As long as there is no infringement, there is no violation, did he ever read KSM and other Federal Circuit guidelines? E* never said violation was ok, E* said they did not violate, period!

EITHER ONE OF THOSE TWO GROUNDS IS SUFFICIENT TO HOLD THEM IN CONTEMPT, THAT IS, THE VIOLATION ON THE FACE AND IF THE CHANGES ARE NOT MORE THAN COLORABLY DIFFERENT.

Not "either" but "both", when there is a difference or change made, my friend, do back read the case law.

THEY ESSENTIALLY ARE TRYING TO REWRITE THE COURT’S INJUNCTION. THIS IS THE COURT’S INJUNCTION: DISABLE THE DVR FUNCTIONALITY. THEY WOULD LIKE TO WRITE IN A NEW WORD, INFRINGEMENT, TO SUGGEST THAT THEY COULD DECIDE ON THEIR OWN AND USE SELF-HELP TO DETERMINE WHEN THINGS ARE OR ARE NOT INFRINGING RATHER THAN GIVING US OR YOUR HONOR AN OPPORTUNITY TO DECIDE THOSE ISSUES ON A FULL RECORD TWO AND A HALF YEARS AGO.

If so then why was Judge Folsom trying to do these two things and these two things only, in this hearing: 1) whether the new software is only colorably different, and 2) whether the modified DVRs still infringe?

Did this guy even know what he was supposed to do in that hearing? He was basically saying those two things were already decided 2 and 1/2 years ago, but was he calling the judge a moron, that the judge forgot that he did them already 2 and 1/2 years ago?

THE ISSUES ARE ACTUALLY RELATIVELY SIMPLE. WE THINK THAT ECHOSTAR WILL DO A LOT OF HAND-WAVING AND MAKE IT SOUND LIKE MULTIPLE ISSUES. THERE ARE ONLY TWO DIFFERENT SETS OF BOXES: THE ST CHIP, ST MICROELECTRONICS CHIP BOXES. WE CALL THEM THE DP-50X BOXES. AND THERE IS ONLY ONE ALLEGED CHANGE. AND THAT ALLEGED CHANGE IS THAT THEY HAVE MADE SOME CHANGES, SO THEY NO LONGER DO INDEXING, AND THEREFORE IT IS A MAJOR CHANGE AND THEY NO LONGER INFRINGE.

BUT THE PROBLEM WITH THAT ARGUMENT, AS WE WILL SEE WHEN WE HEAR THE EVIDENCE FROM EXPERT WITNESSES, IS THE WORD INDEXING DOES NOT APPEAR IN THE SOFTWARE CLAIMS 31 AND 61 THAT ARE BEFORE THE COURT. THE CLAIM TERM IS, QUOTE, “PARSING,” END QUOTE. YOUR HONOR INTERPRETED THAT CLAIM TERM PARSING AFTER HARD FOUGHT CLAIM CONSTRUCTION TO MEAN ANALYZE. THAT CLAIM CONSTRUCTION WAS NOT APPEALED TO THE FEDERAL CIRCUIT. IF THEY DISAGREED, THAT WAS THE POINT IN TIME WHERE THEY COULD HAVE SAID TO THE FEDERAL CIRCUIT, PARSING REALLY MEANS INDEXING. THEY DIDN’T DO THAT. AND NOW THE BULK OF THEIR EVIDENCE HAS TO DO WITH THE FACT THAT THEY ARE NOT INDEXING. IT’S NOT A CLAIM TERM, AND IT’S IRRELEVANT. THEY MAKE THE SAME ARGUMENT WITH THE BROADCOM OR 522/625 BOXES, AND THEY MAKE A SECOND ARGUMENT.

Your memory is too short my friend, because when the Federal Circuit reversed the hardware claim verdict, the Court used the term "indexing" in doing so, and BTW the term "indexing" was brought up by TiVo themelves too.

And guess what? There is no such word "indexing" in the hardware claims either, so how come "indexing" was relevant to the hardware claims?

"Indexing" is relevant because according to TiVo during the trial, "indexing" is the "core of the invention." All the hardware claims, and software claims, all of them describe the same invention, and therefore describe the same "indexing method," only in different ways.

THE SECOND ARGUMENT HAS TO DO WITH BUFFERING, OR A CLAIM TERM, AUTOMATIC FLOW CONTROL. AND WE WILL ALSO SEE THAT THEY NEITHER CHALLENGE THE INTERPRETATION OF THIS COURT AND THEY WILL BE PUTTING FORWARD EVIDENCE ON A CLAIM TERM OR CLAIM CONSTRUCTION THAT DOESN’T APPEAR IN THE CLAIMS AND DOESN’T APPEAR IN THIS COURT’S CLAIM CONSTRUCTION, AND INDEED WASN’T EVEN BROUGHT TO THE FEDERAL CIRCUIT.

Again, those terms were not brought out by E* before in the appeal because they did use "indexing" and the "buffering" in the old design, of course they did not want to bring out the infringing elements to put foot in their own mouth. But it was also TiVo that said the buffering was how the "automatic flow control" could take place, so you see, again, it is ok for TiVo to say "indexing" and "buffering" were relevant to the invention, in fact so much so they were the "core" of the invention, and used such argument to get an infringement verdict, yet now E* cannot use the same terms?

What made TiVo so special?

THESE ARE THE SUBJECTS THAT I WILL BRIEFLY COVER: CHANGE MUST BE ON A CLAIM ELEMENT. THAT MAKES SENSE. AND HERE IS A BASIC AUTHORITY, ADDITIVE CONTROLS. WHEN THERE ARE NO SUBSTANTIAL OPEN QUESTIONS OF –- THERE ARE NO SUBSTANTIAL OPEN QUESTIONS OF INFRINGEMENT IF THERE ARE NO QUESTIONS ON THE ELEMENTS OF THE PERTINENT CLAIM. AND THEN WE ARE GOING TO LOOK AT ECHOSTAR’S ALLEGED CHANGES AND HOW THEY ARE NOT ON THE CLAIM ELEMENTS. THE FIRST ONE IS PARSES. CLAIM 31 AND CLAIM 61 ARE BASICALLY THE SAME IN THIS.

THERE IS THE CLAIM TERM PARSES. THIS IS THE COURT’S CLAIM CONSTRUCTION. PARSE MEANS ANALYZES. AND THIS IS DR. RHYNE, ECHOSTAR’S EXPERT. HE IS BASICALLY SAYING THAT THOSE CLAIMS AT ISSUE, THE TWO CLAIMS AT ISSUE, REQUIRE AN INDEX OR INDEXING, A TERM NOT IN THE CLAIM, NOT IN THE COURT’S CLAIM CONSTRUCTION, NOT APPEALED. HERE IS WHAT ECHOSTAR IS TRYING TO DO. THEY ARE TAKING THE CLAIM TERM AND THEY ARE TRYING TO REWRITE IT. THE TIME TO DO THAT WAS BEFORE YOUR HONOR AT CLAIM CONSTRUCTION OR BEFORE THE FEDERAL CIRCUIT.

THE PRIOR FINDINGS AND CLAIM CONSTRUCTION ARE, OF COURSE, LAW OF THE CASE. THIS IS NOT LIKE A PLAYGROUND GAME AMONG TEENAGERS WHERE SOMEONE CAN CALL A DO-OVER. NOW, WHERE DO THEY GET THIS INDEXING FROM? WE WILL HEAR ABOUT IT IN MORE DETAIL, BUT THEY GET IT FROM AN ARGUMENT, A DEBATE, EVIDENCE THAT WAS PROFFERED BY BOTH SIDES WITH RESPECT TO CLAIM 1, A HARDWARE CLAIM NOT BEFORE THIS COURT IN THIS HEARING. NOW, THE EVIDENCE WILL SHOW THAT NOT ONLY PARSES MEANS ANALYZES BUT ALL THE EXPERTS AT TRIAL TESTIFIED THAT ECHOSTAR PARSES. AND THIS HAS TO DO WITH WHAT’S CALLED A PID FILTER.THE PID STANDS FOR PACKET IDENTIFICATION. IT IDENTIFIES TWO THINGS. FIRST, THE ACTUAL PROGRAM THAT THE CONSUMER WOULD WATCH. ESPN IS AN EXAMPLE. AND THEN SECOND, WHETHER THE PACKET CONTAINS INFORMATION THAT IS AUDIO OR VIDEO.

THERE ARE PID FILTERS IN ALL THE ECHOSTAR BOXES. THEY DO PARSING. THEY DO ANALYZING. AND HERE IS THE EVIDENCE: DR. STORER AT THE FIRST JURY TRIAL STATED THAT THE PID FILTERING OPERATION IS PARSING. AND THIS WAS A POINT THAT ECHOSTAR WAS MAKING ON ITS CROSS EXAMINATION OF PROFESSOR STORER. DR. RHYNE, ECHOSTAR’S EXPERT, WHEN ASKED WHETHER THE ECHOSTAR PRODUCTS DO ACTUALLY PARSE, HE SAID THE PID FILTERS DO A PARSING. THERE IS NO ALLEGED CHANGE TO THE PID FILTERS. THE PID FILTERING THAT IS RESPONSIBLE FOR THE PARSING, IS THE QUESTION. YES. AND HE SPECIFICALLY SAID IT INCLUDED BOTH THE ST AND BROADCOM CHIPS THAT ARE AT ISSUE TODAY.

THE COURT: WELL, WAS THIS INDEXING ISSUE, WAS THAT A THEORY OF CLAIM CONSTRUCTION PUT FORTH BY ECHOSTAR IN THE INITIAL CONSTRUCTION, OR HAS THIS ARISEN AT THIS STAGE OF THE PROCEEDINGS?

MR. CHU: IT WAS NEVER PUT FORWARD WITH RESPECT TO THE SOFTWARE CLAIMS.

THE COURT: AND I AM TALKING IN TERMS OF THE SOFTWARE CLAIMS.

MR. CHU: IT WAS NEVER PUT FORWARD. IT WAS PUT FORWARD WITH RESPECT TO A WORD SEPARATED THAT APPEARED IN
CLAIM 1, THE HARDWARE CLAIM. AND HERE IS DR. POLISH, ECHOSTAR’S EXPERT AT THE JURY TRIAL. HE WAS ASKED WHETHER PID FILTERING IS PARSING WITHIN THE MEANS OF CLAIM 31 AND 61, AND HE SAID, YES. AND THOSE ARE
THE TWO CLAIMS AT ISSUE. TWO OTHER EXPERTS, A DR. GIBSON FROM TIVO AND A DR. JOHNSON WHO WAS A SOFTWARE EXPERT FROM ECHOSTAR WHO IS NOT TESTIFYING AT THIS HEARING, BOTH REFER TO PID FILTERING AS
BEING PART OF THE PHYSICAL DATA SOURCE. AND THE PHYSICAL DATA SOURCE IS WHAT DOES THE PARSING IN THE CLAIM. SO ALL FIVE EXPERTS, THREE FROM ECHOSTAR, TWO FROM TIVO, ALL AGREE THAT PID FILTERING DOES PARSING.

NOW, ECHOSTAR, IN DOING THEIR DESIGN-AROUND, THEY HAD THIS PARTICULAR DOCUMENT AND IT DESCRIBED THE EFFORTS OF THE SOFTWARE ENGINEERS AS DRAFTED BY THE ENGINEERS AS BEING SOMETHING THAT DOES PARSING.
BUT, WA-LA, THEY MADE A CHANGE. THE SAME DOCUMENT CHANGED THE TITLE FROM PARSING TO BRUTE-FORCE DVR. I WONDER HOW THAT CHANGE CAME INTO BEING. SO THE INDEXING ARGUMENT IS IRRELEVANT FOR THE ST BOX, AND OF COURSE IRRELEVANT FOR THE BROADCOM BOXES.

The rest mainly touched on whether the term "indexing" was put forward in terms of the software claims before to mean "parsing." It was not, of course not as I said above, the old software did "indexing" and therefore did "parse." There was no point for E* to bring forward such argument before, because bringing forward such argument before only would prove they infringed.

But now changes happened in the new design, now E* puts forward the argument that the "indexing" is relevant to the "parsing" in the software claims, even though the word "indexing" is not in the software claims, just like the word "indexing" was relevant to the hardware claims back then, even though "indexing" also did not appear in the hardware claims.

The purpose of E* in this summary contempt proceeding, as I explained before, is to put forward dispute of material facts, if E* does so, they win.

The dispute of material facts is, "indexing" is "parsing" in the software claims, and one more thing, the "start codes" are the "audio and vidoe data" in the software claims too.

And the new software does not do either of them, so it no longer infringe.

TiVo has no response to the evidence of dispute other than that they are "irrelevant" to the literal claims terms. Had TiVo used such standard back during the trial, TiVo would never had won that case. TiVo argued all over about how "indexing" was important, how the "start codes" were critical to its invention, how the multiple-buffering was such a great invention.

TiVo's memory was only too short.

 

[jacmyoung]

BTW, TS7, if you are still waiting for the TiVo folks to quote anything E* said in that transcript, do not hold your breath. They had never done so before.

But it does not matter, I can point out TiVo's own nonsense even with the hands tied behind the back.

 

[ts7]

BTW, TS7, if you are still waiting for the TiVo folks to quote anything E* said in that transcript, do not hold your breath. They had never done so before.

It is always easier to establish one's case using only the facts of his or her choosing and ignoring those that are not convenient or expedient.

For me, I have never particularly cared for TiVo's product and I really like my Dish DVR. Though I personally feel Dish has the best DVR on the market (I had a 525 and upgraded to a 722), there are still many things that I think could be improved on. I feel this whole TiVo lawsuit has limited the innovations that Dish could have used to further advance the technology.

To be clear, though, I have absolutely no love for some of Charlie's tactics or business practices and were someone to offer a better DVR with the features I want/need, I would certainly consider switching, but so far TiVo, Comcast and D* have no such offering and I can't get AT&T U-verse or Verizon FiOS.

In the mean time, I hope Dish prevails as I believe (my personal opinion, no facts to back it up) they are in a much better position to advance the technology than TiVo and the sooner this is settled the sooner we can start seeing significant innovation once again in what is really a very exciting technology (at least until everyone gets all of their content via broadband internet)!

 

[Thomas22]

For me, I have never particularly cared for TiVo's product and I really like my Dish DVR.

Your Dish DVR is a Ti Vo product.

 

[jacmyoung]

The innovation has never stopped, I do not necessarily agree this lawsuit even slowed down innovation but I will not dispute that argument, it is an understandable argument.

Most of the "slowdown" in innovation perceived by many today has to do with the studios' relunctance to allow fair use of their digital content. Their fear is understandable but exaggerated and self-defeating.

I personally do not care for Charlie's satellite service policies which was why I switched to DirecTV over a year ago, but we missed the 622s ever since. But I will not go back to E* until they allow more than two HDDVRs on a lease.

TiVo has no future no matter how well they develope their new DVRs, they lack a content anchor. I had said more than once I had always hoped both E* and TiVo can work together, these two companies are more like-minded than any other similar companies. Two of them working together can easily make their DVRs to put everyone else's to shame.

But I do not blame Charlie for standing up to TiVo and wanting to clear the names of his products.

 

[jacmyoung]

Your Dish DVR is a Ti Vo product.

Since when you have become Curtis0620?

 

[ts7]

Your Dish DVR is a Ti Vo product.

OK, I walked into that one.

My point was that TiVo does not offer a product with the features of the 722 that I like.

 

[jacmyoung]

OK, I walked into that one. ...

Not really, even Judge Folsom said the E* DVRs were not TiVo DVRs when he denied TiVo's treble and attorney fee request, he said this was not a copying case.

 

[ts7]

I had said more than once I had always hoped both E* and TiVo can work together, these two companies are more like-minded than any other similar companies. Two of them working together can easily make their DVRs to put everyone else's to shame.

And that is where I see innovation being hindered - rather than working together on a superior product, they are both spending millions of dollars on litigation that could be going into R&D (or fighting the DRM issues).

 

[Thomas22]

OK, I walked into that one.

My point was that TiVo does not offer a product with the features of the 722 that I like.

So if you can't get a polka dot princess phone you blame Alexander Graham Bell?

 

[ts7]

So if you can't get a polka dot princess phone you blame Alexander Graham Bell?

I guess that if I really wanted that polka dot princess phone and a the patent lawsuit between Alexandar Graham Bell and Elisha Gray over who invented the telephone was keeping it from being offered, then perhaps Alexander Graham Bell might get some of the blame.

Fortunately those of us in the USA still live in a capitalistic society (at least for now) where we have many product/service options and the freedom to chose and innovate!

 

[Richard Cranium]

The last installment of the Days of Charlie's lies for today

OK, a little more of Charlie's "good faith" testimony. Here Morgan Chu (a real lawyer who doesn't get his legal opinions from Wikipedia) is grilling Charlie about why he didn't shut the boxes down like he was supposed to.

Mostly, this installment just shows Charlie being his slimy self. I would bet that Charlie is kicking himself in the butt for demanding to testify and show what "good faith" he showed through this whole ordeal.

Asked a bunch of simple yes or no questions by Morgan Chu (a lawyer who I'm pretty sure doesn't spend his every waking hour practicing his craft for free on an internet chat board), our hero Charlie stutters, stammers and basically just "lawyers up" because he knows that he's doomed either way he answers.


BY MR. CHU:

Q MR. ERGEN, WE MAY REFER TO SOME OF THOSE EXHIBITS. LET
ME CALL YOUR ATTENTION TO –-

A DO YOU KNOW WHICH BOOK WOULD BE FIRST?

Q EXCUSE ME?

A DO YOU KNOW WHICH BOOK WOULD BE FIRST SO I CAN SET ONE
DOWN?

Q YOU COULD ACTUALLY PROBABLY SET THEM BOTH DOWN AND I’LL
PUT SOME THINGS UP ON THE SCREEN. IT WILL PROBABLY BE EASIER
FOR YOU. YOU UNDERSTOOD THAT THERE WAS A TIME WHEN HIS HONOR
ENTERED A PERMANENT INJUNCTION. IS THAT CORRECT?

A YES.

Q AND THE PERMANENT INJUNCTION ASKED ECHOSTAR TO DISABLE
ITS DVRS BY SPECIFIC PRODUCT NUMBER, CORRECT?

A I BELIEVE THEY DID, YES.

Q AND THEN ECHOSTAR WENT TO THE FEDERAL CIRCUIT ON AN
EMERGENCY BASIS TO GET A STAY OF THE INJUNCTION, CORRECT?

A YES.

Q AND THE INJUNCTION WAS STAYED PENDING APPEAL, CORRECT?

A YES.

Q AND IN JANUARY OF 2008 THE FEDERAL CIRCUIT AFFIRMED JUDGE
FOLSOM’S TRIAL AND FINAL JUDGMENT. IS THAT FAIR?

A I THINK IT AFFIRMED SOME IN PART, YES.

Q AND THEN THE STAY OF THE INJUNCTION IN DUE COURSE WAS
LIFTED. YOU ARE AWARE OF THAT, CORRECT?

A YES.

Q AND IT’S ALSO CORRECT THAT YOU WERE THE ULTIMATE
DECISION-MAKER, THAT YOU DECIDED ON BEHALF OF ALL OF THE
ECHOSTAR DEFENDING CORPORATIONS IN THIS CASE NOT TO DISABLE
THE SPECIFIC MODELS OF THE DVR THAT JUDGE FOLSOM HAD ORDERED
TO BE DISABLED AND THAT THE FEDERAL CIRCUIT HAD AFFIRMED THAT
THEY SHOULD BE DISABLED. IS THAT CORRECT, YOU WERE THE
ULTIMATE DECISION-MAKER.

A I JUST DISAGREE WITH THAT STATEMENT. I WAS THE ULTIMATE
DECISION-MAKER. I DISAGREE WITH THE PREFACE.

Q WELL, LET’S LOOK AT THE INJUNCTION, AND IF YOU WILL WANT
TO LOOK AT THE ENTIRE INJUNCTION I WILL ALLOW YOU TO DO THAT,
BUT LET’S CALL UP PART OF IT ON THE SCREEN HERE. IT’S
ACTUALLY ON THE FRONT PAGE THAT THE SPECIFIC MODEL NUMBERS ARE
DEFINED, BUT THE PERMANENT INJUNCTION IS AFFIRMED BY THE
FEDERAL CIRCUIT SAYS THAT THE DEFENDANTS ARE TO, QUOTE:
DISABLE THE DVR FUNCTIONALITY, I.E. DISABLE ALL STORAGE TO AND
PLAYBACK FROM A HARD DISK DRIVE OF TELEVISION DATA IN, AND
THERE WERE PRODUCTS SPECIFIED. DO YOU SEE THAT LANGUAGE?

A I SEE THE PART THAT’S BLOWN UP, YES.

Q NOW, THERE WAS NOTHING THAT PHYSICALLY STOPPED YOU AND
YOUR CORPORATIONS FROM DISABLING THAT DVR FUNCTIONALITY. IS
THAT CORRECT?

A I DON’T BELIEVE SO.

Q IN OTHER WORDS, YOU COULD HAVE DOWNLOADED SOME SOFTWARE
THAT WOULD HAVE DISABLED THE DVR FUNCTIONALITY WHILE ALLOWING
THOSE RECEIVER BOXES TO CONTINUE TO OPERATE AS RECEIVERS,
CORRECT?

A YES.

Q AND YOU WERE THE ONE THAT MADE THE DECISION THAT ECHOSTAR
WOULD NOT DISABLE THE DVR FUNCTIONALITY WHEN THE PERMANENT
INJUNCTION BECAME EFFECTIVE, CORRECT?

A I MADE THE DECISION THAT COMPLIED WITH THIS INJUNCTION,
YES.

Q AND THAT DECISION WAS TO MAKE NO CHANGE TO THE DVR
FUNCTIONALITY IN MILLIONS OF SET-TOP BOXES THAT INCLUDED, FOR
EXAMPLE, THE DP-501, 508, 510, 522, AND 625, CORRECT?

A I CAN’T ANSWER THAT YES OR NO.

Q IS IT BECAUSE OF THE PARTICULAR MODEL NUMBERS?

A NO.

Q AFTER THE STAY OF THE INJUNCTION WAS LIFTED, TO THE BEST
OF YOUR KNOWLEDGE, THERE WERE MILLIONS OF DVRS THAT CONTINUED
TO FUNCTION WITH NO CHANGE IN THE DVR FUNCTIONALITY?

A AGAIN, I DON’T THINK THAT’S TRUE, NO.

Q ARE YOU SAYING THAT YOU DISABLED DVR FUNCTIONALITY IN
RESPONSE TO THIS COURT’S INJUNCTION AND THAT INCLUDED THE DP-
501 AS AN EXAMPLE?

A I’M SAYING THAT WE COMPLIED WITH THIS INJUNCTION.

Q SIR, CAN YOU ANSWER MY QUESTION DIRECTLY, NOT IN YOUR
MIND WHETHER YOU THINK YOU COMPLIED WITH IT? DID YOU ISSUE AN
ORDER AT ECHOSTAR TO DISABLE THE DVR FUNCTIONALITY, TO DISABLE
ALL STORAGE TO AND PLAYBACK FROM A HARD DISK DRIVE OF
TELEVISION DATA IN THE DP-501S THAT WERE DEPLOYED BY ECHOSTAR
IN THE FIELD?

A I DON’T THINK I CAN ANSWER THAT YES OR NO.

Q AND YOU WOULDN’T BE ABLE TO ANSWER IT YES OR NO WITH
RESPECT TO THE 508, 510, 522, 625. IS THAT RIGHT?

A I JUST THINK IT’S MORE THAN A YES OR NO ANSWER.

Q I WOULD LIKE TO READ YOUR DEPOSITION TESTIMONY, PAGE 18,
LINE 11 THROUGH LINE 25:

QUESTION: YOU ARE AWARE THAT THE COURT’S INJUNCTION
WAS STAYED PENDING APPEAL?

ANSWER: YES.

QUESTION: AND YOU ARE AWARE THAT THAT STAY WAS
LIFTED IN 2008, CORRECT?

ANSWER: I BELIEVE THAT’S TRUE, YES.

QUESTION: AND AFTER THE STAY WAS LIFTED, ECHOSTAR
CONTINUED TO PROVIDE DVR FUNCTIONALITY TO ITS CUSTOMERS WHO
HAD THE 50X PRODUCTS, CORRECT?

ANSWER: YES.

QUESTION: AND WHO MADE THAT DECISION?

ANSWER: I ULTIMATELY DID THAT, MADE THAT DECISION.

Q NOW, SIR, IF THIS COURT BELIEVES THAT ITS COURT ORDER TO
DISABLE THE DVR FUNCTIONALITY MEANS EXACTLY WHAT IT SAYS ON
THE FACE, INCLUDING THE 501, 508, AND 510 PRODUCTS, WOULD YOU
BE –- WOULD YOU AGREE WITH ME THAT YOU HAVE VIOLATED THAT
INJUNCTION?


MR. MCELHINNY: OBJECTION, YOUR HONOR. IT’S
ARGUMENTATIVE, CALLS FOR LEGAL CONCLUSION AS TO WHAT YOUR
HONOR BELIEVES.

THE COURT: I AM GOING TO SUSTAIN THE OBJECTION. I
THINK IN LARGE PART THAT’S WHY WE’RE HERE TODAY TO DETERMINE.

MR. CHU: THANK YOU.

 

[Richard Cranium]

:
Fortunately those of us in the USA still live in a capitalistic society (at least for now) where we have many product/service options and the freedom to chose and innovate!

And if that fails, steal.

 

[TheKrell]

For me, I have never particularly cared for TiVo's product and I really like my Dish DVR. Though I personally feel Dish has the best DVR on the market (I had a 525 and upgraded to a 722), there are still many things that I think could be improved on.

I don't know if your 525 ever did trick play like a Tivo. I have a 501, a 625, a 722, and two 612 receivers. In the first year (or two?) of 501 service, it's trick play was simply gorgeous. I believe this is due to the duplication of Tivo's Time Warp process in the 501. My 501 used to do fast forward and rewind and skipping forward or backward perfectly. Now it does not. I believe this is due to the design around. I never owned a 525, so I don't know if you ever saw how that extra index file worked. It's functionality is no longer present in any of my receivers.

Was smooth trick play worth $1.50 to me, per month, in perpetuity? No, not really. It was nice, but not essential. I believe that is what Charlie determined as well. Nice to have, but the cost demanded by Tivo is not reasonable for the incremental improvement the Time Warp patent offers.

In my inexpert opinion, the design around was successful and Dish receivers are more than colorably different than they were.

 

[Thomas22]

In my inexpert opinion, the design around was successful and Dish receivers are more than colorably different than they were.

Unfortunately, they attempted to design around claim 1 instead of claims 31 and 61. I guess they misjudged what the appeals court would do.

 

[jacmyoung]

I don't know if your 525 ever did trick play like a Tivo. I have a 501, a 625, a 722, and two 612 receivers. In the first year (or two?) of 501 service, it's trick play was simply gorgeous. I believe this is due to the duplication of Tivo's Time Warp process in the 501. My 501 used to do fast forward and rewind and skipping forward or backward perfectly. Now it does not. I believe this is due to the design around. I never owned a 525, so I don't know if you ever saw how that extra index file worked. It's functionality is no longer present in any of my receivers.

Was smooth trick play worth $1.50 to me, per month, in perpetuity? No, not really. It was nice, but not essential. I believe that is what Charlie determined as well. Nice to have, but the cost demanded by Tivo is not reasonable for the incremental improvement the Time Warp patent offers.

In my inexpert opinion, the design around was successful and Dish receivers are more than colorably different than they were.

I dont know about the 50xs, but my 625 had no noticeable difference after the new software, probably because it was a newer model and more powerful, better at handling the new design.

 

[jacmyoung]

Unfortunately, they attempted to design around claim 1 instead of claims 31 and 61. I guess they misjudged what the appeals court would do.

What they did was relevant to the hardware claims, and therefore also relevant to the software claims, because neither of them mentioned "indexing" but the appeals court had no problem accepting the term "indexing" in the hardware claims analysis, when they reversed the hardware claims verdict.

So take the cue from the appeals court, what do you think Judge Folsom is likely going to do, listening to TiVo, or his boss?