TIVO vs E*

[jacmyoung]

Now in the last post of the transcript, we learned Mr. Chu basically tried to badger Charlie into admitting he violated the disable order, of course the judge stopped Mr. Chu, because whether Charlie violated the order is not for Charlie to decide, but the judge.

Now lets make sure we know E*'s position on this so TiVo's nonsense does not get passed around without some scrutiny.

The injunction ordered the DVR functionalities (i.e. the storage and playback...from the hard drive) be disabled on the 8 named Infringing Products, and it further ordered that once the DVR functionalities are disabled, they may not be reinstalled back on the Infringing Products.

The term Infringing Products are the key in determining if the order is violated or not. You will never hear Mr. Chu mentioning this term, because he cannot face this term. But this term is in the injunction whether he wants to ignore it or not.

Now this is what E*'s position, if anyone can see the logic:

They downloaded a new software to those Infringing Products, and as we all know (since we are Satguys members) when a new software is downloaded, the DVR is totally disabled. So E* is saying, they did disable the infringing DVRs when they downloaded the new software.

After a few minutes (in some instances it could be a few days), when the new software completes its download, the DVR resets itself, and begin to come back to life, and at that point, it is no longer the Infringing Product anymore.

So let's call those 8 named DVRs with the new software “Non-Infringing Products” for sake of ease of comparison. Now E* is saying, they then restored the DVR functionalities back to those “Non-Infringing Products.” Since the injunction never ordered E* to do anything about any “Non-Infringing Products,” only the Infringing Products, E* is of course not in violation.

You will never read TiVo ever mentioning that most important term Infringing Products in their filings, or anywhere, because they cannot face that term, they know they will lose as soon as they mention it.

But that term is in the injunction, in black and white, in capital forms, with emphasis added. Judge Folsom put it in himself, he will not forget that term. There is no way TiVo can hope that the judge somehow misses this term, E* will not let him miss this term. The judge put this term in there for a good reason.

 

[TheKrell]

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.

Dish is always upgrading these receivers several times/year, if not several times/month for brand new and (I am sorry to report) buggy receivers. None of my newer receivers, nor my 625, had the smooth trick play that my old 501 had.

 

[jacmyoung]

Dish is always upgrading these receivers several times/year, if not several times/month for brand new and (I am sorry to report) buggy receivers. None of my newer receivers, nor my 625, had the smooth trick play that my old 501 had.

The experience by the DISH DVR users of course only further supports E*'s claim that they had changed the software to the point that those old less-powerful 50Xs could no longer handle the DVR functions smoothly, once the TiVo invented power-saving functions were removed.

The 50Xs had been discontinued for some time. Are the 625s still being installed? This is the only model left I think among the 8 models.

 

[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.

This is what appeals court said when it discussed the hardware claims 1 and 32 and overturned the infringement verdict on these two hardware claims:

In sum, TiVo is correct that the specification describes the process of indexing data. Both the specification and the text of claims 1 and 32 make clear, however, that indexing occurs after, and in addition to, the separation of the incoming data into distinct video and audio buffers.

Two very important points:

1) "Indexing data" is relevant to the hardware claims, even though the word "indexing" never appeared in the claim terms. But nevertheless the claims describe the process of indexing, why? Because this entire patent describes an invention and the core of the invention is "indexing."

2) When the "indexing data" takes place is also very important to determine if there is infringement or not.

Now E* is putting forward the assertion that the software claims also describe the same "indexing" method, because there is only one invention, all the claims, whether hardware claims, or software claims, must describe this invention, if not, the USPTO would not have let those claims stand, see the logic?

Now E* is saying they no longer do "indexing" therefore they no longer infringe on the software claims.

TiVo's response? But "indexing" is irrelevant to the software claims? If indexing as the core of the invention is not described by the software claims, then what do the software claims describe? Did TiVo explain that? Of course not, TiVo cannot.

Not only the software claims, just like the hardware claims, all describe this invention about this "indexing data" method, it is also very crucial when this "indexing data" takes place.

TiVo later during the hearing also tried to point out that but the new software still used some kind of "index table" after all, after the program was stored onto the hard drive.

Again two points:

1) Why did TiVo end up trying to say E*'s new software still used some "indexing"? Didn't TiVo just say "indexing" was irrelevant?

2) So what if there was still an index table some where? As the appeals court pointed out, when they overturned the hardwware claims verdict, when did the indexing take place was also important to determine if an infringement existed.

E* can still have some index table, as long as "indexing" is not performed in the first step, they do not infringe.

 

[nobody99]

The term Infringing Products are the key in determining if the order is violated or not. You will never hear Mr. Chu mentioning this term, because he cannot face this term. But this term is in the injunction whether he wants to ignore it or not.

Wow, back to that old argument you made a year ago which was shot down already? With DISH's legal team no less? Please, come up with something more challenging. It's almost comical how you have forgotten how often you have been incorrect. It's hard to keep track of things when you make it all up, isn't it?

EchoStar argues that the capitalization of terms ...indicates that the terms were specially defined...and therefore must be given a special meaning instead of their plain meaning.

Integrated Definitions

Each defined term must somewhere in a contract be tethered to its definition. To do this, you can use either "autonomous" or "integrated" definitions. An integrated definition is used once in the thick of the contract and the defined term is tucked at the end of the definition, in parenthesis and quotation marks. An example: At the Closing, the Buyer shall pay to the Seller $2,500,00 as the purchase price for the Acquired Assets (the "Purchase Price")

Traditionally, the defined term has been introduced by a phrase such as hereinafter referred to as. Such language is unnecessary and nowadays is more often than not omitted.

And, last but not least, the injunction

the Court thereby enters judgment for Plaintiff against Defendants for willful infringement of U.S. Patent No. 6,233,389 (hereinafter referred to as the “‘389 patent”), claims 1, 5, 21, 23, 32, 36, 52, 31 and 61 (hereinafter referred to as “the Infringed Claims”) by Defendants’ following DVR receivers (hereinafter referred collectively as the “Infringing Products”): DP- 501; DP-508; DP-510; DP-522; DP-625; DP-721; DP-921; and the DP-942.

Infringing Products is capitalized. It has special meaning. The meaning is the eight-named DVRs.

Let me just add that it's plainly clear what is intended, and I have proven that beyond all doubt. There is absolutely no question in anyone's mind that the term "Infringing Products" is a short-hand definition for the eight named models. Even if English were not your first language you'd know that "Infringing Products" refers to eight models of DVR, infringing or not.

However, you should legitimately be concerned if this is how you expect DISH to win the case. If that's DISH's best defense, there's about $800 million in damages coming TiVo's way. That will buy a battleship full of lawyers which TiVo will then use to sue DISH over the other patents DISH has been violating. At some point, DISH is going to cry uncle and become TiVo's bitch. LOL.

 

[jacmyoung]

...I have proven that beyond all doubt...

Absolute BS! Why didn't TiVo say that? E* argued on the "Infringing Products" point of the injunction, did you ever see TiVo respond to that point?

Do you know that if one party makes an assertion, and the other party fails to respond, the judge will likely have to accept that assertion?

As I said, please do not make up your own argument when TiVo is not making it, the judge will not hear you, whether you believe you have proven anything or not!

I only point out what E* said, what TiVo said in response, or in many cases no response at all, and what the Court said. I do not make up my own argument that E* does not make.

Repeat after me, do not make up my own argument if the party itself does not make it, Judge Folsom will not hear that argument, it is a waste of time, no matter how proud I am of my argument.

BTW, just saw the latest E* ad:

"Better than TiVo, better than DirecTV."

 

[nobody99]

Absolute BS! Why didn't TiVo say that? E* argued on the "Infringing Products" point of the injunction, did you ever see TiVo respond to that point?

Uh, because DISH never even considered as a defense? You're the only one who believes your own nonsense.

Even DISH's subpar legal team knows what the term Infringing Products mean in context of the injunction.

Seriously, you're wrong, and you're making a fool of yourself.

EchoStar argues that the capitalization of terms ...indicates that the terms were specially defined...and therefore must be given a special meaning instead of their plain meaning.

 

[jacmyoung]

Uh, because DISH never even considered as a defense? ...

Please read E*'s filing before making such conclusion.

Just use your own "proof beyond all doubt" as an example:

the Buyer shall pay to the Seller $2,500,00 as the purchase price for the Acquired Assets (the "Purchase Price")

Now if later there is a dispute before the court, the Buyer argues that they did not have to pay the Seller, because the price the Seller wanted to charge, while still the same $2,500, was no longer Purchase Price, rather actually a rental fee, and the Buyer explains why the $2,500 was a rental fee, for example the Buyer was told, after the $2,500 was paid, they would only be able to use the product for one year, after that they would have to pay another $2,500, and every year thereafter, or else the product would stop working because the Seller would not provide the new activation code.

Now if the Seller simply does not respond to the Buyer's such assertion, of course the Buyer can terminate the contract without any consequences. For the Seller to win the argument, the Seller must say for example, no, we did not ask the Buyer to pay $2,500 each year as a rental fee, the subsequent $2,500/year fee is for an extended warranty, and it is also described in that contract.

But the Seller must respond to such argument, if not, then it may mean there is no such warranty provision in the contract, therefore no leg to stand on, then the Buyer can refuse to honor the contract.

 

[Richard Cranium]

Wow, back to that old argument you made a year ago which was shot down already? With DISH's legal team no less? Please, come up with something more challenging. It's almost comical how you have forgotten how often you have been incorrect. It's hard to keep track of things when you make it all up, isn't it?

I don't know what's funnier, pointing out that he thinks he's a better lawyer than Morgan Chu or that he's more proficient in the English language than a Federal Judge.

What's next? He's a better typist than the court stenographer?

 

[Richard Cranium]

Gather round boy and girls, it's story time again!

In our latest story we have Morgan Chu (he of questionable English language skills) cross examining Lawrence Aaronson of Fish and Richardson fame.

Pay close attention to how many holes Mr. Chu (a real lawyer) pokes into Mr. Aaronson's report. The biggest being getting Mr. Aaronson to admit he doesn't know how to read code and instead of asking an independent engineer to explain it to him relys on Dan Minnick and Jeff Blum of Echostar to tell him what it says so he can put it in his "independent" report.

Mr. Chu also gets our hero to admit that he doesn't even know if the code actually does what they tell him it does, or even implemented said code, because he can't read it.

So much for Charlie's "best and brightest"

Once again, I'm no lawyer, nor do I play one on the internet, but after Mr. Chu makes swiss cheese of this "independent" report, one has to come to the conclusion that the whole report is flawed and meaningless.

Next up later today: Mr. Chu's cross of Mr. Hillman, Mr. Aaronson's boss.

Now back to our story.....


CROSS EXAMINATION OF LAWRENCE AARONSON

BY MR. CHU:

Q GOOD MORNING.

A GOOD MORNING.

Q I THINK YOU HAVE A NOTEBOOK WITH SOME MATERIALS,
EXHIBITS, AND OTHER THINGS. WE MIGHT REFER TO THEM. DO YOU
HAVE THAT?

A YES.

Q NOW, YOUR OPINION LETTERS DEAL WITH TWO ISSUES. ONE HAS
TO DO WITH AUTOMATIC FLOW CONTROL. IS THAT RIGHT?

A THAT’S CORRECT.

Q AND ONE HAS TO DO WITH PARSING?

A RIGHT, YES.

Q AND WITH RESPECT TO AUTOMATIC FLOW CONTROL, YOU WERE
INVOLVED IN COMING UP WITH A DESIGN OF AN ALLEGED DESIGN-
AROUND. IS THAT CORRECT?

A I WAS NOT PERSONALLY INVOLVED IN COMING UP WITH THE
DESIGNS. THE ECHOSTAR ENGINEERS WERE THE ONES PROPOSING THE
DESIGNS.

Q AND SO EARLY ON WHEN YOU FIRST GOT INVOLVED THEY HAD
ALREADY FORMULATED THE PROPOSED DESIGN-AROUND FOR AUTOMATIC
FLOW CONTROL. IS THAT RIGHT?

A NOT ENTIRELY. THEY HAD SEVERAL PROPOSED IDEAS, DESIGNS.
THESE WERE AT A VERY HIGH LEVEL, NOT VERY COMPLETE, BUT THEY
WERE JUST PROPOSED IDEAS THAT THEY KNEW WERE TECHNICALLY
FEASIBLE.

Q AND ONE OF THOSE PROPOSED DESIGNS, I JUST WANT TO FOCUS
ON THE ONE THAT RELATES TO AUTOMATIC FLOW CONTROL, WAS CALLED
BY THE PEOPLE AT ECHOSTAR, QUOTE, “SINGLE BUFFER,” END QUOTE?

A THAT’S HOW WE REFERRED TO IT, YES.

Q AND YOU AND MR. HILLMAN ALSO REFERRED TO IT AS, QUOTE,
“THE SINGLE BUFFER,” END QUOTE, ALLEGED DESIGN-AROUND?

A WE MAY HAVE REFERRED TO IT IN THAT IN THE SHORTHAND, BUT
CLEARLY THE END GOAL OF THE DESIGN-AROUNDS WAS TO ELIMINATE
FLOW CONTROL.

Q AND YOU THOUGHT THAT WHEN YOU AND OTHERS REFERRED TO IT
AS THE SINGLE BUFFER DESIGN-AROUND, THAT THAT WAS AN ACCURATE
STATEMENT?

A IT WAS –- AGAIN, SINGLE BUFFER WAS A SHORTHAND
TERMINOLOGY FOR A COUPLE OF PROPOSED DESIGN-AROUNDS, SO IT WAS
ACCURATE WITH RESPECT TO THE DESIGNS THAT WERE PRESENTED TO
ME.

Q THERE WAS A DESIGN-AROUND THAT SO FAR AS YOU KNOW THAT
WAS IMPLEMENTED THAT WAS CALLED THE SINGLE BUFFER DESIGN-
AROUND. IS THAT CORRECT?

A THAT WAS THE SHORTHAND TERM FOR IT, YES.

Q AND AS FAR AS YOU ARE CONCERNED, WHEN YOU USE THAT PHRASE
AND OTHER PEOPLE USE THAT PHRASE IT WAS ACCURATE, CORRECT?

A IT WAS ACCURATE AS A REPRESENTATION OF THE PROPOSED
DESIGN-AROUNDS.

Q NOW, IS THE FOLLOWING CORRECT THAT THE CLAIMS AT ISSUE,
31 AND 61, REFER TO, QUOTE, “A BUFFER,” END QUOTE?

A THE CLAIMS DO RECITE A BUFFER, YES.

Q AND YOU ARE FAMILIAR WITH THE FACT THAT A BUFFER MEANS
AND WAS INTERPRETED TO MEAN ONE OR MORE BUFFERS, CORRECT?

A I DON’T RECALL THAT NOW, NO.

Q WELL, AS SOMEONE WHO PRACTICES PATENT LAW, WHEN THERE IS

A TERM THAT IS A CAR, A SOMETHING, UNLESS THERE IS SOMETHING
MORE SPECIFIC SAID, YOU UNDERSTAND IT MEANS ONE OR MORE?

A YES, IT COULD BE INTERPRETED THAT WAY, YES.

Q AND WITH THAT IN MIND, DID YOU EVER SAY TO THE PEOPLE AT
ECHOSTAR, HOW CAN A SINGLE BUFFER BE A DESIGN-AROUND WHEN THE
CLAIM ITSELF HAS THE PHRASE, QUOTE, “A BUFFER,” END QUOTE?
DID YOU ASK THAT QUESTION? DO YOU RECALL SPECIFICALLY ASKING
THAT QUESTION?

A THAT WASN’T THE QUESTION TO BE ASKED.

Q SO YOU DID NOT ASK THE QUESTION, SIR?

A NO, BECAUSE THAT WAS –-

Q THANK YOU.

A –- NOT RELEVANT.

Q THANK YOU. AND YOU REVIEWED ALL OF THE TRIAL TESTIMONY,
SO YOU REVIEWED TESTIMONY TO THE EFFECT THAT THERE WERE TEN
BUFFERS IN THE PRODUCTS AT TRIAL, CORRECT?

A I WOULD HAVE REVIEWED IT. I DON’T RECALL IT AT THIS
STAGE.

Q BUT THERE WERE MULTIPLE BUFFERS?

A THERE WERE MULTIPLE BUFFERS, YES.

Q AND YOU ARE JUST NOT SURE WHETHER IT WAS EIGHT, OR TEN,
OR SOME OTHER NUMBER LIKE THAT?

A RIGHT NOW I COULD NOT TELL YOU.
Q AND YOU DECIDED BASED ON YOUR REVIEW OF THE TRIAL
TRANSCRIPTS THAT A SINGLE BUFFER SOLUTION WOULD BE A DESIGN-
AROUND, CORRECT?

A I DECIDED BASED ON MY REVIEW OF THE TRANSCRIPTS THAT THE
REMOVAL OF AUTOMATIC FLOW CONTROL WAS A DESIGN-AROUND.

Q LET ME ASK THIS VERY SPECIFICALLY. BASED ON THE REVIEW
OF THE TRANSCRIPTS YOU THOUGHT THE, QUOTE, “SINGLE BUFFER,”
END QUOTE, SO-CALLED DESIGN-AROUND WOULD BE AN EFFECTIVE
DESIGN-AROUND, CORRECT?

A AS I TESTIFIED EARLIER, THAT WAS A SHORTHAND –-

Q SIR, IF YOU CAN FAIRLY ANSWER THE QUESTION YES OR NO.
THE COURT: COULD YOU ANSWER THAT YES OR NO?

A I –- YES.

Q THANK YOU. NOW WHEN YOU REVIEWED THE TRANSCRIPTS YOU
REVIEWED THE TRANSCRIPTS THAT INCLUDED THE TESTIMONY OF THE
FIVE EXPERT WITNESSES ON TECHNICAL ISSUES FROM BOTH SIDES,
CORRECT?

A YEAH, I DID.

Q AND PART OF YOUR ANALYSIS INCLUDED WHAT YOU THOUGHT THAT
DR. GIBSON’S APPLICATION WAS OF THE COURT’S CLAIM
CONSTRUCTION. IS THAT RIGHT?

A YES.

Q AND IT WAS ALSO YOUR INTERPRETATION OF WHAT OTHER
WITNESSES, WHETHER IT WAS MR. BARTON, PROFESSOR STORER, DR.
RHYNE, DR. JOHNSON, OR DR. POLISH, WHATEVER THEIR
INTERPRETATIONS WERE OF THE COURT’S CLAIM CONSTRUCTION. IS
THAT CORRECT?

A THAT WAS INCORPORATED INTO MY ANALYSIS, YES.

Q AND YOU REMEMBER THAT IN READING THE TRIAL TRANSCRIPT
ECHOSTAR ATTEMPTED TO HAVE DR. POLISH TESTIFY AS TO HIS VIEW,
HIS INTERPRETATION OF WHAT HE THOUGHT THAT DR. GIBSON’S
INTERPRETATION WAS. DO YOU REMEMBER THAT?

A NO, THAT I DON’T REMEMBER.

Q I’LL REPRESENT TO YOU THAT THAT TOOK PLACE. LET ME SEE
IF I CAN REMIND YOU A LITTLE BIT MORE. THEN THERE WERE SOME
OBJECTIONS AND THEY WERE SUSTAINED. AND THEN ECHOSTAR’S
LAWYER CONTINUED TO ASK DR. POLISH QUESTIONS ABOUT HIS VIEW OF
WHAT SUPPOSEDLY DR. GIBSON’S INTERPRETATION WAS, AND THOSE
WERE ALSO SUSTAINED. AND THE QUESTIONS CONTINUED UNTIL HIS
HONOR THREATENED ECHOSTAR’S LAWYER BY SAYING IF YOU DO THAT
AGAIN, IN ESSENCE, I AM GOING TO LEVY SANCTIONS. DO YOU
RECALL THAT NOW?

A I HONESTLY DO NOT, NO.

Q DO YOU HAVE THE VIEW THAT IT IS PROPER FOR AN EXPERT
WITNESS AT TRIAL FOR ONE SIDE TO GIVE HIS VIEW OF WHAT HE
THINKS THE OTHER EXPERT WITNESSES’ VIEW ON THE COURT’S CLAIM
CONSTRUCTION IS AS OPPOSED TO TESTIFYING WITH RESPECT TO THE
COURT’S CLAIM CONSTRUCTION AND ONLY THE COURT’S CLAIM
CONSTRUCTION?

A I DON’T KNOW. I MEAN, MY UNDERSTANDING IS –-

Q THANK YOU, SIR. BUT YOU DID CONSIDER WHAT YOUR VIEW IN
YOUR MIND WAS OF WHAT DR. GIBSON’S, OR PROFESSOR STORER’S, OR
MR. BARTON’S, OR THE OTHER EXPERTS’ VIEW OF THE COURT’S CLAIM
CONSTRUCTION, CORRECT?

A AGAIN, I REVIEWED EVERYTHING, YES.

Q AND SO YOUR ANALYSIS DIDN’T STOP WITH THE ACTUAL CLAIM
TERM AUTOMATIC FLOW CONTROL, CORRECT?

A IT WAS AN ANALYSIS –-

Q IS THAT CORRECT, SIR?

A NO, IT DID NOT, RIGHT.

Q AND IT WOULD BE FAIR TO TAKE THE COURT’S CLAIM
CONSTRUCTION BECAUSE THE COURT’S CLAIM CONSTRUCTION WAS IT
MEANS SELF-REGULATED, THAT’S CORRECT?

A UH-HUH.

Q THE ANSWER IS YES?

A YES.

THE COURT: IS THAT A YES?

THE WITNESS: THAT’S A YES.

THE COURT: MRS. CRAWFORD IS TAKING DOWN YOUR
COMMENTS, SO IT’S A LITTLE HARD TO –-

THE WITNESS: I APOLOGIZE.

THE COURT: – FOR HER TO FOLLOW A NOD OR A UH-HUH.

THE WITNESS: I APOLOGIZE.

Q (BY MR. CHU BUT YOU DIDN’T STOP WITH THE COURT’S CLAIM
CONSTRUCTION. YOU WENT BEYOND IT BASED ON YOUR INTERPRETATION
OF WHAT YOU THOUGHT WERE THE INTERPRETATIONS OF THE OTHER
EXPERT WITNESSES BASED ON YOUR REVIEW OF THE TRIAL TRANSCRIPT,
CORRECT?

A I LOOKED AT EVERYTHING, BUT THE CLAIM CONSTRUCTION –-

Q THANK YOU.

A –- RULED THE TODAY.

Q SIR, YOU –-

A I LOOKED AT EVERYTHING.

Q –- YOU LOOKED AT THE COURT TRIAL TRANSCRIPTS OF ALL THE
EXPERT WITNESSES, CORRECT?

A THAT’S CORRECT.

Q AND YOU TOOK THAT INTO CONSIDERATION IN RENDERING YOUR
OPINION, CORRECT?

A ABSOLUTELY.

Q OKAY. NOW, YOU SAID THE COURT’S CLAIM CONSTRUCTION RULED
THE DAY. IS THE FOLLOWING FAIR? THERE IS NO PLACE IN THE
CLAIM ITSELF, THE ACTUAL CLAIM TERMS, THAT SUGGEST OR STATE –-
LET ME BACK UP. I’M JUST REFERRING TO THE ACTUAL CLAIM TERMS,
NOT THE COURT’S CLAIM CONSTRUCTION FOR NOW. THERE IS NO CLAIM
TERM THAT STATES CLAIM 31 AND 61 ARE LIMITED TO A SINGLE
BUFFER SOLUTION, CORRECT?

A THERE IS NO CLAIM TERM FOR THAT, THAT’S CORRECT.

Q AND THE CLOSEST CLAIM TERM THAT REFERS TO THE NUMBER OF
BUFFERS IS THE PHRASE, QUOTE, “A BUFFER,” END QUOTE, WHICH
MEANS ONE OR MORE BUFFERS, CORRECT?

A RIGHT.

Q NOW, LET’S GO TO THE COURT’S CLAIM CONSTRUCTION. YOU
STUDIED THAT CAREFULLY, AND THERE IS NOTHING IN THE EXPRESS
WORDS OF THE COURT’S CLAIM CONSTRUCTION THAT SAYS AUTOMATIC
FLOW CONTROL IS LIMITED TO AUTOMATIC FLOW CONTROL THAT HAS
MORE THAN ONE BUFFER OR MULTIPLE BUFFERS, CORRECT? THERE IS
NOTHING EXPLICIT IN WHAT THE COURT STATED?

A I DON’T KNOW WITHOUT LOOKING RIGHT NOW.

Q WELL, LET ME REFRESH. AUTOMATIC FLOW CONTROL WAS DEFINED
BY THE COURT TO MEAN SELF-REGULATED. IS THAT CORRECT?

A THAT’S WHAT I RECALL.

Q AND THAT WAS IT?

A UH-HUH, YES.

Q SO WITH THAT DEFINITION IT WOULD BE FAIR TO SAY, JUST
READING THAT DEFINITION, WHETHER YOU ARE A LAWYER, A LAYMAN, A
JUDGE, OR ANYONE ELSE, LOOKING JUST AT THOSE WORDS, NO ONE
WOULD SAY, AH-HA, THIS REQUIRES MULTIPLE BUFFERS, CORRECT?

A NO.

Q THANK YOU. NOW, YOU HAD ANOTHER SOLUTION THAT BECAME THE
SUBJECT OF YOUR FINAL OPINION LETTERS, AND IT REFERRED TO A
CLAIM TERM, QUOTE, “PARSING,” END QUOTE. IS THAT CORRECT?

A THAT’S CORRECT.

Q AND PARSING IS THE TERM THAT ACTUALLY APPEARS IN CLAIMS
31 AND 61, CORRECT?

A CORRECT.

Q AND THE COURT CONSTRUED PARSING, CORRECT?

A THEY DID, THE COURT DID.

Q AND THE COURT SAID PARSING MEANS ANALYZING, CORRECT?

A CORRECT.

Q IS IT CORRECT THAT IN THE TOTALITY OF THE CLAIM LANGUAGE
OF 31 AND 61, YOU NEVER SEE THE WORD INDEXING, CORRECT?

A THAT IS CORRECT.

Q YOU NEVER SEE THE WORD INDEX OR ANY VARIATION OF INDEXING
OR INDEX, CORRECT?

A NOT AT ALL.

Q YOU NEVER SEE WORDS STATING A LIMITATION OR A CLAIM
ELEMENT THAT START CODES MUST BE DETECTED, CORRECT?

A THAT’S CORRECT.

Q YOU NEVER SEE ANYTHING SUGGESTING THAT A TABLE HAS TO BE
BUILT AS A RESULT, CORRECT?

A THAT IS CORRECT.

Q WE ARE ONLY FOCUSED ON THE WORD PARSING, CORRECT?

A PARSING AND ITS MODIFICATION OF OTHER TERMS.

Q YES. BUT WE ARE FOCUSED ON THE TERM PARSING, CORRECT?

A PARSING IS THE KEY TERM.

Q AND THE ECHOSTAR PROPOSAL TO YOU WAS THAT THEY WOULD
DESIGN-AROUND THE TERM PARSING BY HAVING THE INDEX FILE
REMOVED, CORRECT?

A THE DESIGN-AROUND WAS TO REMOVE ANALYZING OF THE AUDIO
AND VIDEO DATA.

Q LET ME BACK UP. DID THEY CALL IT INDEX FILE REMOVAL?

A THAT WAS A SHORTHAND TERM, YES.

Q DID YOU ALSO CALL IT INDEX FILE REMOVAL?

A I’M SURE I DID.

Q AND YOU WOULD AGREE WITH ME IF THERE WAS A CLAIM ELEMENT
THAT REQUIRED AN INDEX FILE AND YOU REMOVED IT, THEN ONE WOULD
NO LONGER INFRINGE THE CLAIM, RIGHT?

A I AGREE, YES.

Q OKAY. AND IF THERE WAS ANOTHER CLAIM ELEMENT THAT SAID
SUPERCALIFRAGILISTIC, AS AN EXAMPLE, BUT IT WAS INTERPRETED BY
THE COURT TO MEAN INDEX FILE, AN INFRINGER WHO REMOVED THE
INDEX FILE WOULD IN GENERAL NO LONGER INFRINGE THE CLAIM,
CORRECT?

A FOR THAT TERM, YES.

Q THE TOTALITY OF THE CLAIM TERM AND THE COURT’S

INTERPRETATION FOR PURPOSES OF INFRINGEMENT AT THE ORIGINAL
TRIAL WAS THAT PARSING MEANS ANALYZING, RIGHT?

A THAT IS CORRECT.

Q AND YOU HAD THE UNDERSTANDING THAT ECHOSTAR DECIDED NOT
TO APPEAL THAT CLAIM CONSTRUCTION AT ALL, CORRECT?

A I -- I DON’T KNOW THAT NOW.

Q WELL, YOU WOULD AGREE WITH ME, ASSUMING THAT’S THE CASE,
THAT ECHOSTAR OUGHT NOT TO BE ABLE TO ARGUE FOR SOME BRAND NEW
CLAIM CONSTRUCTION IN THIS PROCEEDING IF IT WAS A PIVOT POINT
FOR ITS ARGUMENTS OF NON-INFRINGEMENT?

A MY UNDERSTANDING IS THE COURT HAS RENDERED ITS CLAIM
CONSTRUCTION.

Q THANK YOU.

Q MR. AARONSON, YOU THINK YOU RENDERED AN
INDEPENDENT OPINION. IS THAT CORRECT?

A OH, YES.

Q YOU KNEW FROM BEGINNING TO END THAT ECHOSTAR WANTED AN
OPINION THAT THEY DIDN’T INFRINGE BY THE CHANGES THAT THEY
WOULD MAKE LATER?
A THEY NEVER CAME OUT AND SAID WE WANT AN OPINION OF NON-
INFRINGEMENT. THEY ASKED ME TO –-

Q SIR, CAN YOU FAIRLY ANSWER THE QUESTION? DID YOU HAVE
THE UNDERSTANDING THAT THEY WOULD WANT A WRITTEN OPINION THAT
THEY DIDN’T INFRINGE?

A YES.

Q THANK YOU. AND IS IT FAIR TO SAY THAT YOU DID ALMOST ALL
THE WORK FOR THE OPINION?

A I DID A BULK OF IT, YES.

Q MAYBE TWENTY TIMES MORE THAN MR. HILLMAN?

A PROBABLY, YES.

Q AND MR. HILLMAN RELIED ON YOUR WORK. IS THAT CORRECT?

A I’M NOT SURE WHAT YOU MEAN BY RELIED.

Q DO YOU KNOW WHAT THE WORD RELY MEANS?

A I DO BUT –-

Q HE COUNTED ON YOUR WORK?

A OH, YES, HE DID, YEAH.

Q HE TRUSTED YOUR WORK?

A YES.

Q YOU SPENT OVER 180 HOURS. HE SPENT NINE HOURS. HE
DIDN’T REPLICATE ALL OF YOUR WORK?

A OH, NO, NOT AT ALL.

Q MR. HILLMAN RELIED ON YOUR WORK?

A YES.

Q THANK YOU. NOW, YOU UNDERSTAND WHAT’S MEANT BY A PRIMARY
SOURCE MATERIAL VERSUS A SECONDARY? LET ME GIVE YOU AN
EXAMPLE FOR A LAWYER. A PRIMARY SOURCE MATERIAL IF WE ARE
TALKING ABOUT CASE LAW IS TO READ THE ACTUAL DECISION OF A
COURT, OR A STATUTE TO READ THE ACTUAL STATUTE. DO YOU HAVE
THAT IN MIND?

A YES.

Q AND THEN IF SOMEONE IS MAKING A COMMENTARY SAYING, WELL,
THE FEDERAL CIRCUIT IN X VERSUS Y REALLY DECIDED ABCD, WE
OFTEN REFER THAT TO A SECONDARY AUTHORITY, CORRECT?

A RIGHT, RIGHT.

Q AND YOU HAVE THE VIEW THAT IF YOU’VE GOT A REALLY TOUGH
ISSUE AND YOU WANT TO GET IT RIGHT, YOU WANT TO SEE THE
PRIMARY SOURCE MATERIALS, CORRECT?

A YES.

Q YOU DON’T WANT TO TRUST WHAT SOMEONE ELSE TELLS YOU,
CORRECT?

A SOMETIMES YOU CAN.

Q IF SOMEONE HAS A REASON TO BE BIASED, WHO HAS A LOT OF
SELF-INTEREST RIDING ON IT, AND YOU WANT TO RENDER AN
INDEPENDENT OPINION, YOU WANT TO LOOK AT THE PRIMARY SOURCE
MATERIALS. IS THAT CORRECT?

A I DID, YES.

Q IN THE END, FOR HOW SOFTWARE ACTUALLY OPERATES, THE
PRIMARY SOURCE MATERIAL IS THE SOURCE CODE, CORRECT?

A THAT’S THE FINAL IMPLEMENTATION, YES.

Q THANK YOU. AND SO IF SOMEONE, WHETHER IT’S FOR THIS CASE
OR ANY OTHER CASE, WITH SOME ABILITY TO READ SOURCE CODE
WANTED TO KNOW HOW THE ACTUAL SOFTWARE WORKED, WHETHER IT HAD
ONE BUFFER OR TEN BUFFERS, WHETHER IT WAS PARSING OR NOT
PARSING, WHETHER A BUFFER WAS A RING BUFFER OR SOMETHING ELSE,
THEY COULD LOOK AT AND READ THE ACTUAL PRIMARY SOURCE
MATERIAL, THE SOURCE CODE, CORRECT?

A HE COULD. THAT’S ONE OPTION.

Q YES. AND MR. HILLMAN DOESN’T REALLY HAVE THE ABILITY TO
READ SOURCE CODE, CORRECT?

A I DON’T KNOW THAT.

Q TO THE BEST OF YOUR KNOWLEDGE, HE DID NOT READ AND
INTERPRET ANY OF THE SOURCE CODE INVOLVED IN THIS CASE,
CORRECT?

A TO THE BEST OF MY KNOWLEDGE, YES.

Q IN YOUR DEPOSITION YOU WERE ASKED ABOUT A PORTION OF THE
ECHOSTAR SOURCE CODE THAT RELATES TO THE ALLEGED DESIGN-
AROUNDS. IS THAT RIGHT?

A I DO RECALL, YES.

Q AND YOU WERE ASKED ABOUT PARTICULAR FUNCTIONS. IS THAT
CORRECT?

A YES.

Q AND AFTER LOOKING AT THIS PRIMARY SOURCE MATERIAL, THE
SOURCE CODE, YOU SAID YOU DIDN’T UNDERSTAND HOW THAT FUNCTION
WORKED, CORRECT?

A THAT IS CORRECT, YES.

Q AND YOU ALSO HAD TO ADMIT THAT INSTEAD OF YOUR TRYING TO
INTERPRET THE PRIMARY SOURCE MATERIAL, IT WOULD BE BETTER TO
HAVE AN ENGINEER, SUCH AS AN ENGINEER FROM ECHOSTAR, DO IT,
CORRECT?

A NOT EXACTLY.

Q WELL, YOU DIDN’T CONSIDER YOURSELF QUALIFIED TO DISCUSS
AND WALK THROUGH THE ECHOSTAR SOURCE CODE. IS THAT CORRECT?

A IT’S BECAUSE I DIDN’T HAVE ALL OF IT.

Q I WOULD LIKE TO READ FROM YOUR DEPOSITION TRANSCRIPT,
PAGE 57, LINE 24 THROUGH 58, 20. I THINK, SIR, THERE IS A
COPY OF THE TRANSCRIPT THERE FOR YOU.

MR. MCELHINNY: WHAT PAGE?

MR. CHU: 57, 24; 58, 20.

MR. MCELHINNY: THANK YOU.

Q (BY MR. CHU) QUESTION: ASSUME THAT THIS IS THE ROUTINE
THAT THE SOURCE CODE CALLS TO WRITE SOMETHING TO THE DISK.

ANSWER: ALL RIGHT. I’M NOT REALLY THE RIGHT PERSON
QUALIFIED TO DISCUSS –- AND THEN YOU HAVE TO WALK THROUGH THE
CODE. I’M SURE THAT ONE OF THE ENGINEERS WOULD BE BETTER
SUITED TO DO THIS. I DON’T WANT TO SAY ANYTHING THAT’S
INACCURATE BECAUSE MY EXPERIENCE AS AN ENGINEER GOES BACK TO
1990 AND THAT’S IT. I HAVEN’T CODED REALLY SINCE THEN, SO I
JUST DON’T WANT TO SAY ANYTHING INACCURATE. CONCERN THAT I
WANT TO MAKE SURE IT’S RIGHT. SO I THINK, I MEAN, YOU WERE
PROBABLY BETTER OFF TALKING TO OR ASKING A SOFTWARE ENGINEER
OR ACTUALLY THE CODER. MR. ANDERSON IS THE RIGHT PERSON.

QUESTION: SO YOU CAN’T ANSWER THE QUESTION –-

ANSWER: I –- NOT WITH –- THERE’S AN OBJECTION. NOT WITH ANY
DEGREE OF CERTAINTY THAT I WOULD BE CORRECT.

Q WHEN YOU WERE ASKED WHO YOU RELIED UPON AT ECHOSTAR IN
YOUR DEPOSITION, YOU NAMED A NUMBER OF PEOPLE. IS THAT
CORRECT?

A YES.

Q ONE WAS DAN MINNICK. IS THAT RIGHT?

A YES.

Q AND HE’S SOMEONE WHO HAS BEEN DESIGNATED AS THE OFFICIAL
ECHOSTAR REPRESENTATIVE ON LEGAL ISSUES TO TESTIFY ABOUT THE
LEGAL ISSUES IN THIS CASE, CORRECT?

A YES.

Q AND YOU ALSO MENTIONED JEFF BLUM, CORRECT?

A I DID.

Q AND A DAVID ST. JOHN-LARKIN, CORRECT?

A YES.

Q AND YOU MENTIONED NO OTHER PERSONS?

A THOSE ARE THE NAMES THAT I RECALLED.

Q WELL, YOU SAID THAT THE NAMES OF OTHER PEOPLE ARE IN THE
LETTERS, BUT THEY ARE NOT. IS THAT FAIR?

A YES.

Q SO WHEN ASKED TO NAME ALL THE PEOPLE THAT GAVE YOU
INFORMATION, YOU NAMED MR. MINNICK, THE FELLOW WHO WAS
DESIGNATED TO TESTIFY OFFICIALLY ON THE LEGAL ISSUES. JEFF
BLUM IS THE SECOND PERSON WHO IS IN CHARGE OF LITIGATION,
INCLUDING PATENT LITIGATION INCLUDING THIS CASE, CORRECT?

A RIGHT.

Q AND THE THIRD PERSON YOU RELIED UPON WHO TOLD YOU
INFORMATION BECAUSE HE DIDN’T READ THE SOURCE CODE WAS DAVID
ST. JOHN-LARKIN, AND HE IS A PATENT LAWYER, CORRECT?

A UH-HUH, YES.

Q IN-HOUSE AT ECHOSTAR?

A AT THE TIME, YES.

Q AND YOU RELIED ON WHAT EACH OF THOSE PERSONS TOLD YOU,
CORRECT?

A ALONG WITH SOME OTHERS, YES.

Q DO YOU KNOW WHAT A DESCRIPTOR COUNT IS?

A I DO NOT.

Q DO YOU KNOW WHAT A DESCRIPTOR IS?

A I DON’T THINK IT HAS A MEANING IN THE ART, SO I DON’T –-
I REALLY DON’T KNOW.

Q YOU DON’T KNOW WHETHER INFORMATION IS BEING COMMUNICATED
BETWEEN BROADCOM DRIVERS AND THE ECHOSTAR APPLICATION. IS
THAT CORRECT?

A IN THE FINAL IMPLEMENTATIONS?

Q CORRECT. LET’S START WITH THE FINAL IMPLEMENTATION.

A I DON’T KNOW HOW THE FINAL IMPLEMENTATIONS WERE ACTUALLY
IMPLEMENTED.

Q WELL, WHEN YOU WERE ASKED IN GENERAL, WITHOUT LIMITING IT
TO THE FINAL IMPLEMENTATION, IN YOUR DEPOSITION YOU SAID THAT
YOU JUST DIDN’T KNOW WHAT INFORMATION IS BEING COMMUNICATED
BETWEEN THE BROADCOM DRIVERS AND THE ECHOSTAR APPLICATION. IS
THAT CORRECT?

A AS WE –- AS I WROTE IN THE OPINION, IT WAS POINTER
VALUES.

Q I’M ASKING IF YOU CAN RECALL YOUR TESTIMONY FOR THE
MOMENT.

A I DON’T KNOW WHAT’S BEING COMMUNICATED, NO.

Q NOW, JUST SO WE CAN SEE WHETHER THIS HAS ANY RELEVANCE.
WHEN INFORMATION IS COMING DOWN FROM THE SATELLITE, IT’S
RECEIVED BY THE SET-TOP BOXES, CORRECT?

A UH-HUH, YES.

Q AND THEN AFTER SOME PROCESSING OF VARIOUS KINDS, IT
EVENTUALLY GETS WRITTEN TO ONE OR MORE BUFFERS. I’M NOT
FOCUSED ON THE NUMBER OF BUFFERS RIGHT NOW, CORRECT, JUST IN
GENERAL?

A THERE IS AN INTERMEDIATE BUFFER, YES.

Q AND THEN EVENTUALLY FROM THE BUFFERS THAT INFORMATION IS
WRITTEN TO THE HARD DRIVE, CORRECT?

A THAT’S CORRECT.

Q AND THE BROADCOM CHIP WASN’T ORIGINALLY DESIGNED JUST FOR
ECHOSTAR, IT COULD BE USED BY OTHERS, CORRECT?

A THAT’S CORRECT.

Q AND THE BROADCOM CHIP THEREFORE HAS PLACES IN THE WAY
IT’S DESIGNED AND THE WAY ITS SOFTWARE DESIGNED TO HAVE A
HANDOFF FROM WHAT THE BROADCOM CHIP DOES AND THE SOFTWARE FROM
THE BROADCOM ENGINEERS, SO THE ECHOSTAR ENGINEERS WHO ARE
RESPONSIBLE FOR DESIGNING THE REST OF THE SET-TOP BOX CAN TAKE
THE HANDOFF, CORRECT?

A YEAH, WE DESCRIBE THAT IN THE OPINION.

Q AND THIS HANDOFF TAKES PLACE BETWEEN THE CIRCUITRY THAT
RECEIVES THE SATELLITE SIGNAL, PUTS IT TO THE BUFFER, AND THEN
WHEN IT GOES FROM THE BUFFER TO THE HARD DRIVE, IT’S AT THAT
POINT THAT THERE IS A HANDOFF, CORRECT?

A I –- THAT I DON’T KNOW EXACTLY HOW THE BROADCOM CHIP
OPERATES.

Q IF YOU DON’T KNOW, THAT’S OKAY.

A NO.

Q DID YOU HAVE ANY UNDERSTANDING THAT THE COPY BUFFER, THE
ELEVENTH BUFFER THAT WAS ORIGINALLY IN THE BROADCOM CHIP AND
USED, WAS TO FACILITATE, TO MAKE EASY THAT HANDOFF SO THAT THE
ECHOSTAR ENGINEERS COULD JUST WRITE CODE TO TAKE THE HANDOFF,
AND THE BROADCOM ENGINEERS COULD JUST WRITE CODE TO PUT THE
BALL, SO TO SPEAK, IN THE COPY BUFFER SO THAT THERE WOULD BE A
DOORWAY WHERE THEY COULD MEET WITHOUT WORRYING ABOUT EACH
OTHER’S CODE? DID YOU UNDERSTAND THAT?

A YEAH, AND THAT WAS THE INTENTION OF ONE OF THE PROPOSED
DESIGN-AROUNDS IN THE OPINION, YES.

Q SO UNDERSTANDING THE PURPOSE OF THE COPY BUFFER AND HOW
IT ACTUALLY OPERATED MIGHT HELP YOU UNDERSTAND THE SUBSTANCE
OF THE CHANGE THAT WAS MADE WHERE ONLY THE COPY BUFFER, WHICH
WAS THE EXACT SAME SIZE AS EACH OF THE OTHER TEN COMPARTMENTS
IN THE BUFFER WHERE IT WAS NO LONGER BEING USED, CORRECT?

A AS –- I’M NOT SURE HOW THE HARDWARE WAS CHANGED –-

Q THANK YOU.

A –- BY THE SOFTWARE CHANGES.

Q NOW, I WANT TO BE CERTAIN OF THIS. I THINK YOU MAY HAVE
ALREADY ANSWERED IT. ARE YOU ABSOLUTELY CERTAIN THAT YOU
DIDN’T PROVIDE ANY PROPOSED MODIFICATIONS TO ECHOSTAR?

A I DID NOT, NO.

Q DID MR. HILLMAN PROVIDE ANY PROPOSED MODIFICATIONS TO
ECHOSTAR?

A NO, I BELIEVE HE DID NOT.

Q THANK YOU. NOW, LET ME CALL UP FISH SLIDE NUMBER 1 FOR
THE MOMENT AND JUST LET YOU LOOK AT THIS. ON THE LEFTHAND
SIDE THAT IS A QUOTE FROM YOUR OPINION LETTER. WE CAN FIND IT
FOR YOU. COULD YOU JUST READ WHAT’S ON THE LEFTHAND SIDE?

A THIS PROCESS IS COMPLETELY ASYNCHRONOUS AND –-

Q GO AHEAD.

A –- AND NO COMMUNICATION BETWEEN THE WRITE_TSP_THREAD AND
THE BROADCOM DRIVER IS PERFORMED.

Q AND THAT’S PART OF YOUR OPINION LETTER?

A THAT IS CORRECT.

Q NOW, JUST TAKE A MOMENT. YOU CAN –- WELL, READ IT ALOUD,

DR. RHYNE’S TESTIMONY, WOULD YOU?

A QUESTION: SO THERE IS ECHOSTAR CODE THAT COMMUNICATES
WITH THE DRIVER CODE REGARDING DESCRIPTOR COUNTS, RIGHT?
ANSWER: THERE IS ECHOSTAR CODE THAT USES PROGRAMMING
INTERFACES PROVIDED BY THE BROADCOM PROPRIETARY DRIVERS,
THAT’S CORRECT.

Q AND YOU WOULD AGREE THAT DR. RHYNE WAS CORRECT AND YOU
WERE WRONG?

A I THINK THESE ARE BOTH ACCURATE STATEMENTS.

Q THANK YOU. LET ME PUT UP SLIDE NUMBER 2. READ WHAT’S ON
THE LEFTHAND SIDE.

A THE WRITE_TSP_THREAD ALWAYS WRITES TO THE HARD DRIVE WHEN
IT PULLS THE BROADCOM DRIVER, EVEN IF THERE ARE ZERO BYTES TO
BE TRANSFERRED.

Q AND DR. RHYNE’S TESTIMONY ON THAT?

A QUESTION: LIKEWISE, IF THERE IS NO FRESH DATA TO WRITE,
IF THERE IS NO FRESH DATA, THEN IN THAT CIRCUMSTANCE, LIKEWISE
THERE IS NO DATA WRITTEN TO THE HARD DRIVE, CORRECT?
ANSWER: THAT’S MY UNDERSTANDING. IN THAT SITUATION IF
THERE’S AN INDICATION THAT THERE IS NO NEW DATA TO BE WRITTEN,
THEN THEY DON’T WRITE ANY DATA. THEY DON’T HAVE ANYTHING TO
WRITE.

Q AND YOU WOULD AGREE THAT DR. RHYNE IS CORRECT AND YOU
WERE INCORRECT. IS THAT SO?

A I BELIEVE DR. RHYNE IS CORRECT.

Q THANK YOU. NO FURTHER QUESTIONS.

 

[nobody99]

Now if later there is a dispute before the court, the Buyer argues that they did not have to pay the Seller, because the price the Seller wanted to charge, while still the same $2,500, was no longer Purchase Price, rather actually a rental fee, and the Buyer explains why the $2,500 was a rental fee, for example the Buyer was told, after the $2,500 was paid, they would only be able to use the product for one year, after that they would have to pay another $2,500, and every year thereafter, or else the product would stop working because the Seller would not provide the new activation code.

Wow. So this is your defense of the term "Infringing Products." LOL.

 

[jacmyoung]

Again, Mr. Chu made a complete fool of himself.

Of course a prominent patent firm lawyer may not know how to read the specific software code, it is not their job to know how to read the code, it is the job of the engineers to describe what those codes really do, and the lawyer's job is to interpret what the engineers described to him, and offer his opinion based on such interpretations as true, whether an infringement may still exist or not.

This is how all the "opinions of outside counsels" are obtained to demonstrate non-infringement, whether there is an infringement lawsuit or not.

Please, stop grasping at the straws Mr. Chu, and again please pass on this message to that dude don't continue to embarrass the TiVo folks by quoting such TiVo's argument which is a laughing stock. If one can only understand each individual English word or terms, but has no ability to read the whole story in its context, he has only passed the second grade.

At least Thomas22 knows not to embarrass TiVo with such nonsense.

Now specific to Me. Chu's comment about "a buffer," this is again using the literal interpretation without considering the context. Because the patent claims describe "obtain a buffer" from one of the many buffers TiVo's invention must rely on, because TiVo said themselve, for the "automatic flow control" to work, there had to be many buffers, some data flow to one buffer, then got stopped, but other data got to continue to flow to the other buffers, that was exactly how TiVo said their "self regulating" invention would work.

Without multiple buffers, the TV viewers would see garbled TV pictures. Again TiVo said so themselves, and it is part of TiVo's argument that won the infringement case. TiVo only now too eager to ignore what evidence they used themselves.

And such nonsense is repeated over and over, because TiVo cannot face their own terms during the previous trial, they cannot understand the Court will interpret terms in the context they are presented.

Just read the above quote I made of the appeals court's decision to overturn the hardware claims verdict, anyone with more than a grade school level of English reading will understand, other terms, while not literally included in the claims constructions, will still be used by the Court in decision making:

In sum, TiVo is correct that the specification describes the process of indexing data. Both the specification and the text of claims 1 and 32 make clear, however, that indexing occurs after, and in addition to, the separation of the incoming data into distinct video and audio buffers.

Again, the term "indexing" never existed in the hardware claims limitations, but the Court had no problem using it.

 

[jacmyoung]

Wow. So this is your defense of the term "Infringing Products." LOL.

No, this is your example you used to claim your "proof beyond all doubt" and I only used your own example to refute your so called "beyond all doubt."

In your case, TiVo is the same as arguing, but the Buyer violated the contract "on the face" by not wanting to pay the same amount of $2,500, while refusing to face the term "Purchase Price."

I hope the above English is more clear for you to understand now.

 

[Richard Cranium]

Lets review....

Let me see if I have this straight, If your trying to write an "independent" opinion and you don't understand how to read code, you don't ask an independent engineer to explain it to you, you ask a bunch of your clients lawyers to read you the code? The very same people that are paying you to write your "independent" opinion?

LOL!!! What a farce. A total "sham" if you will. Morgan Chu made mincemeat out of this clown and his "independent report".

Anyone who doesn't see that is a total homer and should turn in his internet lawyers license.

 

[Richard Cranium]

Wow. So this is your defense of the term "Infringing Products." LOL.

Looks like someone's been reading to much Wikipedia again. That quote makes me dizzy !sadroll

 

[jacmyoung]

Let me see if I have this straight, If your trying to write an "independent" opinion and you don't understand how to read code, you don't ask an independent engineer to explain it to you, you ask a bunch of your clients lawyers to read you the code? The very same people that are paying you to write your "independent" opinion?

LOL!!! What a farce. A total "sham" if you will. Morgan Chu made mincemeat out of this clown and his "independent report".

Anyone who doesn't see that is a total homer and should turn in his internet lawyers license.

There is no need to, all the counsel was doing was to offer his opinion whether the new design still meet the limitation of "automatic flow control" function. As TiVo had desribed during the trial the "automatic flow control" could only be accomplished by "multiple-buffers." So when the E* personnel told the lawyer their new software no longer accessed multiple buffers, only using a single buffer, for the purpose of regulating the overflow of the data, the lawyer's job is not to ask, how did you do that?

Rather his job was to offer his opinion, based on what was explained to him, and states if the "automiac flow control" is still met or not.

This much was actually said by him while answering Mr. Chu's questions, he said the change was made by the software, the hardware did not change, he corrected Mr. Chu, and Mr. Chu said: "Thank you."

 

[jacmyoung]

Looks like someone's been reading to much Wikipedia again. That quote makes me dizzy !sadroll

The references used to refute Mr. Chu's false arguments are many, some are him putting wrong words in E*'s mouth, some are ignoring what the appeals court said to TiVo during the appeal, some are ignoring what TiVo said themselves during the trial, and of course some are contradicted by third party legal references.

But if one noticed, the TiVo folks had nothing to go by but only what TiVo said. The TiVo folks have no ability to have their own independent analyses, they are "copycats," only able to recite what TiVo is saying.

The worst part, they do not even have the courage to copy what E* had said in that hearing. Mindless "copycats" are just what we need to lose their sorry case.

At least Nobody99 tried to use a few of his own examples, but when I managed to refute his theory using his own examples, all he could say was, well was my example all you could say about this case?

 

[Richard Cranium]

Q AND YOU ALSO HAD TO ADMIT THAT INSTEAD OF YOUR TRYING TO
INTERPRET THE PRIMARY SOURCE MATERIAL, IT WOULD BE BETTER TO
HAVE AN ENGINEER, SUCH AS AN ENGINEER FROM ECHOSTAR, DO IT,
CORRECT?

A NOT EXACTLY.

Q WELL, YOU DIDN’T CONSIDER YOURSELF QUALIFIED TO DISCUSS
AND WALK THROUGH THE ECHOSTAR SOURCE CODE. IS THAT CORRECT?

A IT’S BECAUSE I DIDN’T HAVE ALL OF IT.

Q I WOULD LIKE TO READ FROM YOUR DEPOSITION TRANSCRIPT,
PAGE 57, LINE 24 THROUGH 58, 20. I THINK, SIR, THERE IS A
COPY OF THE TRANSCRIPT THERE FOR YOU.

MR. MCELHINNY: WHAT PAGE?

MR. CHU: 57, 24; 58, 20.

MR. MCELHINNY: THANK YOU.

Q (BY MR. CHU) QUESTION: ASSUME THAT THIS IS THE ROUTINE
THAT THE SOURCE CODE CALLS TO WRITE SOMETHING TO THE DISK.

ANSWER: ALL RIGHT. I’M NOT REALLY THE RIGHT PERSON
QUALIFIED TO DISCUSS –- AND THEN YOU HAVE TO WALK THROUGH THE
CODE. I’M SURE THAT ONE OF THE ENGINEERS WOULD BE BETTER
SUITED TO DO THIS. I DON’T WANT TO SAY ANYTHING THAT’S
INACCURATE BECAUSE MY EXPERIENCE AS AN ENGINEER GOES BACK TO
1990 AND THAT’S IT. I HAVEN’T CODED REALLY SINCE THEN, SO I
JUST DON’T WANT TO SAY ANYTHING INACCURATE. CONCERN THAT I
WANT TO MAKE SURE IT’S RIGHT. SO I THINK, I MEAN, YOU WERE
PROBABLY BETTER OFF TALKING TO OR ASKING A SOFTWARE ENGINEER
OR ACTUALLY THE CODER. MR. ANDERSON IS THE RIGHT PERSON.

QUESTION: SO YOU CAN’T ANSWER THE QUESTION –-

ANSWER: I –- NOT WITH –- THERE’S AN OBJECTION. NOT WITH ANY
DEGREE OF CERTAINTY THAT I WOULD BE CORRECT.

Q WHEN YOU WERE ASKED WHO YOU RELIED UPON AT ECHOSTAR IN
YOUR DEPOSITION, YOU NAMED A NUMBER OF PEOPLE. IS THAT
CORRECT?

A YES.

Q ONE WAS DAN MINNICK. IS THAT RIGHT?

A YES.

Q AND HE’S SOMEONE WHO HAS BEEN DESIGNATED AS THE OFFICIAL
ECHOSTAR REPRESENTATIVE ON LEGAL ISSUES TO TESTIFY ABOUT THE
LEGAL ISSUES IN THIS CASE, CORRECT?

A YES.

Q AND YOU ALSO MENTIONED JEFF BLUM, CORRECT?

A I DID.

Q AND A DAVID ST. JOHN-LARKIN, CORRECT?

A YES.

Q AND YOU MENTIONED NO OTHER PERSONS?

A THOSE ARE THE NAMES THAT I RECALLED.

 

[jacmyoung]

And the mindless "copycat" even forgot he had already copied this last one before. I guess they are not even that good at copying after all

Let me say this again, in a summary contempt proceeding, the non-mover's (E's) job is to demonstrate dispute of material facts. The job of TiVo is to demonstrate with clear and convincing evidence that such dispute does not exist.

Instead, TiVo spent most of its time trying to tell the judge, but those E* people are not reliable, they are "liars." Not knowing in a summary proceeding, the relative credibility of the witnesses are not the issue. If TiVo had faild to address the dispute raised by E*, TiVo had failed.

The mindless "copycats" can stick their heads in the sand and enjoy their own humor of it all, who cares?

 

[HobbyTalk]

Your Dish DVR is a Ti Vo product.

Please point out the facts where the VIP series of Dish receivers have been determined to infringe?