Many would contend E* should have fired their lawyers years ago, but then is it a case of bad legal advice or a client (Charlie) that won't listen to it?
TIVO vs E*
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Many would contend E* should have fired their lawyers years ago, but then is it a case of bad legal advice or a client (Charlie) that won't listen to it?
I know, and I accept that, and I was forgiving YOU. No apology was given other than to be polite.
Please break it down to your points. Thats an entire case there. Surely you have reason for comparison. I am asking you to list them because every case is different. Without you detailing the exact similarities, its just another piece or useless information in this discussion thread.
how the hell would I know? You didn't even state your position on how one even relates to the other. I can read anything and understand it as it is, but how it relates to this case and your point of view is entirely yours to communicate here beyond an assumption of 'read it'...so please continue...
And for the record, to clarify my previous post, so you understand it better...every legal battle is a gamble, and you only spend what you can afford to lose if that be the outcome...
Kindly READ my posts before you respond so you can comment accurately. Thank you.
EDIT:
You mention the Exxon Valdez? if that is to be taken seriously as a relevant point, how does that relate to this trial or discussion? Thanks.
Now if anyone recall at one point the TiVo folks quoted TiVo’s Q/A session where TiVo spent a lot of time questioning if E* made any effort to verify if every one of the DVRs received the new software download, and the answer was no, it was not possible. But the E* witness actually said in the end there was a way to find the penetration level, but TiVo’s lawyer did not like that last answer. What was left out by the TiVo folks was the judge’s words following TiVo’s objection:
What the judge said was, his explanation was fine, the TiVo’s objection was overruled, but more importantly, the judge said he would not make his decision based on if E* had verified that each DVR had received the new software.
Why? Because his order did not say, after the software download to disable the DVR functionalities, from the Infringing Products, that E* must verify that each Infringing Product had received the new software that disabled such DVR functionalities.
What the judge said was, his explanation was fine, the TiVo’s objection was overruled, but more importantly, the judge said he would not make his decision based on if E* had verified that each DVR had received the new software.
Why? Because his order did not say, after the software download to disable the DVR functionalities, from the Infringing Products, that E* must verify that each Infringing Product had received the new software that disabled such DVR functionalities.
Here's an option: if you don't have an answer you don't have to respond that you can't answer the question - either because you can't do the research or you just don't understand the complexity of the issue. The answer has nothing to do with my opinion or my interpretation of Folsom's order. It's not a debate of my ideas, it's an open question to be debated by those who choose to inform themselves.
If you want to educate yourself on the topic please feel free to do so on your time. Perhaps you might add something to the premise I proposed. Otherwise, your post adds nothing useful.
By the way, the purpose for raising the Valdez case to refute your claim that legal fees are in any way potentially proportionate to damages. You are wrong in that case and wrong in this case. Ipso facto.
So here's a perfect example of where you have lost the train of thought:
I stated "Perhaps my posing of the question was too subtle. I didn't mean to suggest a certain outcome or that it would be in the billions." In other words, you were wrong.
You replied "But you did...but thats ok...forgiven."
I replied: "I specifically said "it has the potential", which is exactly the opposite of suggesting a certain outcome. So I specifically qualified one "possibility", which you interpreted and accused me of "suggesting a certain outome". Apology not accepted." In other words, you were wrong.
And your response was "I know, and I accept that, and I was forgiving YOU. No apology was given other than to be polite."
Once again, you are wrong. I have nothing to apologize for or be forgiven for. Your responses are nonsequitors to misinterpretations of statements I didn't make.
I do not have time for research on unrelated topics, and I know most of the relevant answers. You are posting generalities and not relating them, so I asked questions. You're not providing the answers...please...answer the questions, and do minus the personal attacks. Then we can talk.
Thank you.
On the issue of Paice v. Toyota, I know the TiVo folks want to use this Judge Folsom’s new Paice opinion and the compulsory licensing judgment to speculate what could happen to the TiVo v. E* case. You are grasping straws, and I will tell you why:
For one thing, in the Paice v. Toyota case, Paice as the winning patentee, had their permanent injunction request denied, because Paice did not meet the four-pronged test.
For another, Judge Folsom says that Toyota “continues to willfully infringe by choice” after the final judgment. Toyota made no secret that their newly produced vehicles continued to infringe, and it would cost a lot to re-tool the factories to implement a non-infringement alternative to avoid further infringement.
A permanent injunction is the most severe punishment to the losing infringer in a patent case, often times it resulted in the losing infringer going out of business, or settling with the winning patentees in very favorable terms to the patentees.
But after the Supreme Court’s EBay decision, a permanent injunction was no longer automatic after the patentee won an infringement case. In such cases, the winning patentees still must be compensated, and when the parties cannot resolve the royalty issue, the court must determine a reasonable royalty rate, in the form of a compulsory licensing judgment awarded to the winning patentees.
But this usually happens only if a permanent injunction is not justified.
As I said, a permanent injunction is the most severe punishment, but it also carries its own risk, that is if the infringer can successfully design around the patent, the court injunction will not touch its newly designed products. The injunction can only prohibit further infringement.
Here in this 2/17 hearing, the only issue before the judge is whether E* had violated the injunction, and to do so, the judge must first determine if the new design is only colorably different than the old design, if the difference is more than colorable, it is the end of the case as far as contempt is concerned.
If the difference is only colorable, then the judge must go one step further, to determine if TiVo had proven by clear and convincing evidence that the new design still infringes on the software patent claims, and only after that is proven, will there be a contempt.
But even if after all these, and there is a contempt, you will still not be able to see any decision on the damages and/or new royalty rates, because such issues are not before the judge right now, it will have to be addressed later.
For one thing, in the Paice v. Toyota case, Paice as the winning patentee, had their permanent injunction request denied, because Paice did not meet the four-pronged test.
For another, Judge Folsom says that Toyota “continues to willfully infringe by choice” after the final judgment. Toyota made no secret that their newly produced vehicles continued to infringe, and it would cost a lot to re-tool the factories to implement a non-infringement alternative to avoid further infringement.
A permanent injunction is the most severe punishment to the losing infringer in a patent case, often times it resulted in the losing infringer going out of business, or settling with the winning patentees in very favorable terms to the patentees.
But after the Supreme Court’s EBay decision, a permanent injunction was no longer automatic after the patentee won an infringement case. In such cases, the winning patentees still must be compensated, and when the parties cannot resolve the royalty issue, the court must determine a reasonable royalty rate, in the form of a compulsory licensing judgment awarded to the winning patentees.
But this usually happens only if a permanent injunction is not justified.
As I said, a permanent injunction is the most severe punishment, but it also carries its own risk, that is if the infringer can successfully design around the patent, the court injunction will not touch its newly designed products. The injunction can only prohibit further infringement.
Here in this 2/17 hearing, the only issue before the judge is whether E* had violated the injunction, and to do so, the judge must first determine if the new design is only colorably different than the old design, if the difference is more than colorable, it is the end of the case as far as contempt is concerned.
If the difference is only colorable, then the judge must go one step further, to determine if TiVo had proven by clear and convincing evidence that the new design still infringes on the software patent claims, and only after that is proven, will there be a contempt.
But even if after all these, and there is a contempt, you will still not be able to see any decision on the damages and/or new royalty rates, because such issues are not before the judge right now, it will have to be addressed later.
No...thats you issuing a personal attack on me, Richard...
Nothing more.
Now, make a point. Rocky as rule here and you are breaking them.
Paice v Toyota
Ok, so we've heard from one poster. Anyone else want to participate in the discussion over the original question posed, after actually understanding the question...
Just wanted to put out there Folsom's recent decision regarding post-judgment damages in Paice v Toyota, (if you haven't see it look it up). This has to be seen as a game-changer for infringers who have played the game based on the assumption that it might be cheaper to ask a jury than negotiate a license for a patent.
Does anyone out there think it's time for E* to fire the lawyers and negotiate a license before they lose more than they can afford? This has the potential to move the continuing infringement numbers into the billions.
Ok, so we've heard from one poster. Anyone else want to participate in the discussion over the original question posed, after actually understanding the question...
Just wanted to put out there Folsom's recent decision regarding post-judgment damages in Paice v Toyota, (if you haven't see it look it up). This has to be seen as a game-changer for infringers who have played the game based on the assumption that it might be cheaper to ask a jury than negotiate a license for a patent.
Does anyone out there think it's time for E* to fire the lawyers and negotiate a license before they lose more than they can afford? This has the potential to move the continuing infringement numbers into the billions.
I don't know who Richard is. And there was no perosnal attack intended, unless you mean disagreement on our points of view. I posed certain statements and you misrepresented them as something else and debated that. My recap speaks for itself, no offense intended.
Once again...please provide the details of the case you wish to present for discussion...I read the case. There are similarities, there are differences.
Please elaborate on those you wish to present for comment or accept the fact you have nothing of value to offer this discussion.
The Paice decision is relevant to this case only in that, if E* new design is found to continue to infringe, and therefore E* continues to willfully infringe on the TiVo's patent, TiVo may successfully argue that the royalty rate will have to be higher, it is no longer limited to what was calculated during the original trial.
That is as much a relevance to this case as you can say. Of course in this case, TiVo must first prove by clear and convincing evidence that the E* new design still infringes on the software claims.
First thing first.
That is as much a relevance to this case as you can say. Of course in this case, TiVo must first prove by clear and convincing evidence that the E* new design still infringes on the software claims.
First thing first.
If you will read my two recent posts on Paice v. Toyota to you. Let me know if I missed any part of your questions, I did not read all your exchanges with Vampz so it is possible I had left out a thing or two.
Thats ok...he didn't add much either except for saying "Paice v. Toyota" three times and the Exxon Valdez...
I didn't represent or misrepresent anything. I asked you to clarify you position, which you didn't. You're basically just babbling right now and the rest of us are trying to make sense of it to give you the benefit of the doubt.
once again, please clarify your position and avoid the personal attacks on me.
Actually, E* has already admitted that they have continued to willfully infringe for some period of time, at least until all the downloads were completed. Then they argued a damages amount less than the jury awarded for those units for that time period, totalling about $16M, leaving open some questions for the court to decide about additional damages they have already agreed they owe.
Tivo of course has argued much more, for much longer, etc.
I'm only posing the question of how anyone, in particular Charlie, evaluates the financial decision tree given that Folsom (as per Paice) appears to be of the mindset that:
1. continuing infringment is necessarily wilful
2. it could cause damages to be quadrupled relative to the jury findings
3. unrelated to Paice, the permanant injunction was established and as of today has not been withdrawn or modified. If and when it does there is a distinct posibility the court could order damages to be paid for it's duration for the reason that parties are not entitled to "self help" without bearing the consequences
4. the ultimate damages, in an eventual finding of continued infringement - not colorably different OR continued literal infringement OR infringement under the doctrine of equivalents OR literal h/w infringement OR h/w infringement under the DOE (and that's a lot of possibilitilies!) - could be as much as 8M DVRs for 3 years at as much as $6 per month = $1.7B, plus $48M per month thereafter
That's a lot of canolis.
The question for discussion: does that change the parties views of litigation v. negotiation?
Go back and read your posts before you make this kind of contradictory statement. I took the time to replay the conversation with you where you made several misrepresentations.
It would be much more useful for the fourm to focus on the question I've now posed at least three times: how does Paice change the parties views of litigation v. negotiation? It's a very simple question that does not take me supporting my opinion for you to answer, nor will I waste my time educating you on the complexities of Paice. Folsom speaks for himself, quite ominously.
its a very large case. I asked for specifics. You refuse to provide the necessary details of your argument to establish a discussion.
therefore you failed...
You are right...you have wasted your time...lmao...
Stop babbling now...we have established members here interested in a 'real' discussion...
Thank you.
You like editing your posts a lot...lol...
make your point. now...or consider yourself ignored and reported for spamming.
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