TIVO vs E*

[isaac newton]

Paice v Toyota

Just wanted to put out there Folsom's recent decision regarding post-judgment damages in Paice v Toyota, (if you haven't seen 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.

 

[vampz26]

Just wanted to put out there Folsom's recent decision regarding post-judgment damages in Paice v Toyota, (if you haven't seen 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.

Jacy already replied to this. I've already discredited this.

Go back and read the intermittent commentary thats taken place in between your personal attacks against me.

 

[isaac newton]

I've already discredited this.

You haven't provided a whiff that you know the first thing about Paice.

I have never in my life put anyone on ignore until now. First time ever.

 

[jacmyoung]

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.

To which the judge had already told E* the $16M was the bare minimum, E* knew that already.

Tivo of course has argued much more, for much longer, etc.

To which Judge Folsom also responded, he said he simply could not get his head around how TiVo came up with the $220M.

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

Whether he continues to infringe is what this 2/17 hearing will try to find out. If you want to point out that their DVRs still infringed during a period of the stay of the injunction, the judge already told TiVo he could not understand how they came up with that $220M figure, it was ridiculous to him, so no, there is no news as far as the damages is concerned, not from this Paice case.

2. it could cause damages to be quadrupled relative to the jury findings

Only if he is in contempt, even then how much is still up for debate, but get a contempt first, no contempt, no such "quadrupled" damage. All I am saying is, please do not try to apply the Paice case here, Charlie is not shaking in his boots because of this.

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.

Did you hear TiVo say so? No, TiVo's job now is to prove by clear and convincing evidence E* still infringes, again first thing first.

The question for discussion: does that change the parties views of litigation v. negotiation?

Believe me, Charlie knows treble damages and attorney fees, it came up once already.

 

[vampz26]

You haven't provided a whiff that you know the first thing about Paice.

I have never in my life put anyone on ignore until now. First time ever.

thats only because you've never provided a whiff that you know the first thing about Paice other than the name of it.

I asked for what details you were referring too while comparing the cases as to facilitate discussion.

You failed to answer.

Put me on ignore...thats what happens....

 

[isaac newton]

To which the judge had already told E* the $16M was the bare minimum, E* knew that already.

Paice confirms that E* has wilfully infringed since the injunction and must use a figure much higher, up to 4 times higher or more, than they did to arrive at $16M. That number if now a minumum of $64M.

To which Judge Folsom also responded, he said he simply could not get his head around how TiVo came up with the $220M.

We agree, Folsom has already said that once he rules on the Feb-17,18 matters there will likely need to be another hearing, presumably on actual damages. Tivo used $2.25 in their calculation that arrived at $220M. It is now far more likely that Folsom will accept a number closer to $6 for the period of continuing infringement.

Whether he continues to infringe is what this 2/17 hearing will try to find out. If you want to point out that their DVRs still infringed during a period of the stay of the injunction, the judge already told TiVo he could not understand how they came up with that $220M figure, it was ridiculous to him, so no, there is no news as far as the damages is concerned, not from this Paice case.

Folsom said that E* number of $16M was ridiculous, he NEVER said that Tivo's number of $220M was ridiculous.

Only if he is in contempt, even then how much is still up for debate, but get a contempt first, no contempt, no such "quadrupled" damage. All I am saying is, please do not try to apply the Paice case here, Charlie is not shaking in his boots because of this.

Wrong. Regardless of contempt, if Folsom finds now or ever that E* is continuing to infringe under any of the 5 tests I cited above, such continuing infringement is necesarilly willful and will likely be subject to the Paice standards.

 

[jacmyoung]

All I am saying is, if TiVo folks will like to come up with a wishful scenario about billions of damages, wait for the ruling first at least. There is a good reason you did not hear TiVo say a single word of damages in this hearing. We are not there yet.

If Charlie is now suddenly scared of paying billions, well let me just say that you really dont know him at all. Not that I know him well, only that I know him well enough to say please stop doing the hypothetical, I did not say that, Thomas22, one of the TiVo folks said so.

 

[isaac newton]

All I am saying is, if TiVo folks will like to come up with a wishful scenario about billions of damages, wait for the ruling first at least. There is a good reason you did not hear TiVo say a single word of damages in this hearing. We are not there yet.

If Charlie is now suddenly scared of paying billions, well let me just say that you really dont know him at all. Not that I know him well, only that I know him well enough to say please stop doing the hypothetical, I did not say that, Thomas22, one of the TiVo folks said so.

We agree that the Feb-17,18 hearing wasn't on damages. That will come later.

But you misunderstand the question I am posing about Paice, and it's not directed at Charlie. I understand he is not scared of anything, ever. Charlie will eventually pay Tivo whatever the US government tells him he owes, and I have no doubt that he is unable to resolve this dispute anyother way.

My question is directed at his shareholders, customers and other stakeholders as to how Paice changes their perception of E* position. Does it affect it at all? Or does everyone think that Folsom's theories in Paice are entirely irrelevant?

 

[jacmyoung]

Paice confirms that E* has wilfully infringed since the injunction and must use a figure much higher, up to 4 times higher or more, than they did to arrive at $16M. That number if now a minumum of $64M.

My point was, on 9/4 it was already known E* still infringed for a period since the injunction, and the judge's response to TiVo's estimate of $220M was, it was ridiculous. And he also said the $16M was the minimum. My estimate has been $20M to $30M.

We agree, Folsom has already said that once he rules on the Feb-17,18 matters there will likely need to be another hearing, presumably on actual damages. Tivo used $2.25 in their calculation that arrived at $220M. It is now far more likely that Folsom will accept a number closer to $6 for the period of continuing infringement.

No, it will not be more than what TiVo had asked for, it does not work that way.

Folsom said that E* number of $16M was ridiculous, he NEVER said that Tivo's number of $220M was ridiculous.

He said he could not wrap his head around the idea that the jury awarded TiVo $74M, and now TiVo was asking for $220M for a period that was only 1/3 of the period covered by the jury.

Again, please do not make up some $6 number on your own. TiVo is not asking for that. Wait for TiVo to ask for it at least. The Paice decision can not apply here because Judge Folsom's $25 was ridiculously low in the first place, it would have been around $96 in the first place.

Judge Folsom's $25 was based on that jury's ridiculously low award in the first place, BTW in that case, Paice asked for $250 consistently, they could not have changed their numbers around just because the appeals court remanded the $25 decision, it did not work that way, and Paice ended up getting $96.

Now TiVo asked for $220M, E* was $16M, the final will be in between.

Wrong. Regardless of contempt, if Folsom finds now or ever that E* is continuing to infringe under any of the 5 tests I cited above, such continuing infringement is necesarilly willful and will likely be subject to the Paice standards.

Contempt means continuing infringement, please understand the basic concept first.

 

[jacmyoung]

...My question is directed at his shareholders, customers and other stakeholders as to how Paice changes their perception of E* position. Does it affect it at all? Or does everyone think that Folsom's theories in Paice are entirely irrelevant?

Your such question demonstrates that you did not understand:

1) The customers do not care about any court cases;
2) In the case of E*, the shareholders had little to say, Charlie and his gang are the super majority shareholders.

That is why he can fight all the way, others have little to say.

 

[isaac newton]

Contempt means continuing infringement, please understand the basic concept first.

Wrong. E* could be found not in contempt of the injunction but could be found to continue to infringe, perhaps many years from now after another trial on hardware claims. In that case, that infringment would amount to continuing infringement of the original finding.

Please understand the basic concepts first. Being in contempt does NOT equate to E* continuing to infringe the patent. And no longer being in contempt does NOT equate to no longer infringing the patent. These are two seperate, although not altogether unrelated, legal concepts.

 

[isaac newton]

Your such question demonstrates that you did not understand:

1) The customers do not care about any court cases;
2) In the case of E*, the shareholders had little to say, Charlie and his gang are the super majority shareholders.

That is why he can fight all the way, others have little to say.

If you think customers do not care about court cases, what do you think is going to happen if Folsom orders the DVRs shut off and Tivo refuses to settle? The customers will care a great deal. Patent law is littered with the corpses of companies that have been found to infringe and their customers have had to go elsewhere.

If Charlie loses his DVRs, and Tivo will not accept a deal, I guarantee the shareholders will remove him if his Board does not do it first, or there will be a massive shareholder lawsuit.

You seem to lack any appreciation of how captialism works. Dish customers will have their DVRs one way or another.

 

[jacmyoung]

...perhaps many years from now after another trial on hardware claims. ...

Then you need to wait may years from now, you speak too soon if E* is not in contempt. That is why I asked you folks to wait for the ruling, because TiVo is waiting too, you did not hear TiVo talking about damages after 9/4 did you?

BTW, I already explained why TiVo will not bring back the hardware claims, I will not repeat it.

 

[isaac newton]

No, it will not be more than what TiVo had asked for, it does not work that way.

I think you've lost the plot here. Tivo and E* tried once to address the ongoing damages issue and Folsom decided he first needed to decide what the parameters were:
1. Was E* in contempt of his injunction
2. Does E* continue to infringe

Once those boundaries are decided, he will then ask both sides to come back again with ANOTHER NEW damages analysis where both sides calculate based on the same assumptions - i.e. from when does it start, what units are affected, when or if it has ended.

Undoubtedly Tivo will pick up some of the theories in Paice when that argument gets made. And E* will argue against them. But I assure you that whatever Tivo asked for before is going to change based on the new standard.

 

[jacmyoung]

If you think customers do not care about court cases, what do you think is going to happen if Folsom orders the DVRs shut off and Tivo refuses to settle? ...

I think you should be more worried about the TiVo customers, if TiVo fails to get a contempt, no one will be under any pressure to continue to license TiVo's patent, TiVo will go down much faster than they have been in the past year.

As for the 8 named E* DVRs, even if there is a contempt, which I am now more than ever convinced that there will not be, but even if there is a contempt, most of them are discontinued items, not a lot of people are still using them, E* can replace them as many as they can.

But again, please do not cry for Charlie, it is his money, and he decides how to use it, how to earn it, and how to lose it. Your concern simply does not apply here.

 

[isaac newton]

BTW, I already explained why TiVo will not bring back the hardware claims, I will not repeat it.

You are wrong about Tivo and the h/w claims. Tivo will bring back the h/w claims only if they need to, which they don't right now.

 

[jacmyoung]

I think you've lost the plot here. Tivo and E* tried once to address the ongoing damages issue and Folsom decided he first needed to decide what the parameters were:
1. Was E* in contempt of his injunction
2. Does E* continue to infringe

Once those boundaries are decided, he will then ask both sides to come back again with ANOTHER NEW damages analysis where both sides calculate based on the same assumptions - i.e. from when does it start, what units are affected, when or if it has ended.

Undoubtedly Tivo will pick up some of the theories in Paice when that argument gets made. And E* will argue against them. But I assure you that whatever Tivo asked for before is going to change based on the new standard.

Let me say it again, in the Paice case, Paice had asked for $250, they got $25, on appeal the appeals court remanded the $25 decision, and BTW Toyota had argued for $17, and Paice got $96.

Please do not try to make the Paice case more than what it is, stick to this case. The final damages will be a number between what the two parties had established.

 

[isaac newton]

I think you should be more worried about the TiVo customers, if TiVo fails to get a contempt, no one will be under any pressure to continue to license TiVo's patent, TiVo will go down much faster than they have been in the past year.

As for the 8 named E* DVRs, even if there is a contempt, which I am now more than ever convinced they there will not be, but even if there is a contempt, most of them are discontinued items, not a lot of people are still using them, E* can replace them as many as they can.

But again, please do not cry for Charlie, it is his money, and he decides how to use it, how to earn it, and how to lose it. Your concern simply does not apply here.

Grasshopper, you have no idea do you? This entire lawsuit is about establishing Tivo's IP rights to the patent. At some point it will end and if Tivo is left standing with a piece of paper that says the patent is valid and binding, then every DVR company, including successor DVR's at Dish, will be required to either license the IP from Tivo or be faced with willful infringement of an already adjudicated technology.

I don't think you really understand the end game here. Why do you think Tivo hasn't gone after every other DVR maker in the universe? Or the other Dish DVRs? Or the h/w claims?

Don't you get it?

 

[jacmyoung]

You are wrong about Tivo and the h/w claims. Tivo will bring back the h/w claims only if they need to, which they don't right now.

Well then wait for many years from now if they do, OK? Let's talk about now, not many years from now.

 

[jacmyoung]

Grasshopper, you have no idea do you?...

I answered our questions didn't I? You aksed for them, I gave them to you, the fact you did not like them is no reason to seek a vacation