TIVO vs E*

[jacmyoung]

There is a bet going on at the TiVo Investor Village, when will Judge Folsom issue his ruling?

There is actually another bet one can do:

Who do you think will issue a ruling first, the DE Judge Farnan on case transfer, or the TX Judge Folsom on contempt?

I wouldn't bet on when Judge Folsom will rule, instead I am going to bet that Judge Farnan will wait for Judge Folsom to rule first. Just to play safe

 

[vampz26]

Very true.

At this point I think the insanity plea works well too...

 

[jacmyoung]

At this point I think the insanity plea works well too...

You should join the "village people" there, you will fit right in

And BTW if you do decide to join them, say hello for me and pass along my kind words. I think some of them are pure losers, and others are just in there too happy to milk those losers

And in the end there will be sore losers and actual winners in that "investors village" after TiVo loses, just a matter of time.

 

[jacmyoung]

Below is E*’s lawyer getting the TiVo’s expert witness to admit that Mr. Barton, the TiVo patent inventor, described about the “parser” (i.e. the "physical data source") in the software claims. And such descriptions were in Mr. Barton’s latest depositions on 01/22/09, right before the 2/17/09 hearing. So it is not just what TiVo said back during the jury trial, but now right before this hearing, about the how the physical data source parses, as defined in the software claims:

Q (BY MS. KREVANS) AND THE PARSER ALSO FILLS THE EVENT BUFFER WITH EVENTS? AND MR. BARTON ANSWERS: AS THE PARTICULAR PARSER DESCRIBED HERE IN THE FIGURES RUNS, IT IDENTIFIES THINGS LIKE FRAME STARTS, OTHER INFORMATION ABOUT THE MPEG STREAM, AND GENERATES AN EVENT WHICH DESCRIBES WHERE IN THESE OTHER BUFFERS IN MAIN MEMORY THE PARTICULAR COMPONENT, THE FRAME START, WHATEVER, OF THE STREAM COMING IN IS SITTING IN MEMORY.
THAT WAS MR. BARTON’S TESTIMONY ABOUT THE PHYSICAL DATA SOURCE OF CLAIMS 31 AND 61, CORRECT?
A WELL, NO, YOU LEFT OUT –- AND NOW I DO REMEMBER THIS. HE ALSO HAD ADDITIONAL CLARIFICATION ABOUT THIS PASSAGE AT THE END.
Q DR. STORER –
A SO IT WASN’T HIS –
Q DR. STORER, WHAT I JUST –
A –- COMPLETE TESTIMONY.
Q DR. STORER, PLEASE –
THE COURT: DOCTOR, IF YOU WILL LISTEN TO THE QUESTION AND RESPOND.
THE WITNESS: OKAY.
Q (BY MS. KREVANS) THE QUESTION WAS, WHAT I JUST READ WAS TESTIMONY THAT MR. BARTON GAVE ABOUT THE PHYSICAL DATA SOURCE OF CLAIMS 31 AND 61 OF THE ‘389 PATENT, CORRECT?
A THIS WAS TESTIMONY WHICH WAS LATER ALSO AMENDED.
Q THIS WAS TESTIMONY THAT MR. BARTON GAVE UNDER OATH AT HIS DEPOSITION ON JANUARY 22ND, 2009, CORRECT?
A THAT IS CORRECT, AS I MENTIONED EARLIER.
MS. KREVANS: THANK YOU, YOUR HONOR.

 

[vampz26]

You should join the "village people" there, you will fit right in

And BTW if you do decide to join them, say hello for me and pass along my kind words. I think some of them are pure losers, and others are just in there too happy to milk those losers

And in the end there will be sore losers and actual winners in that "investors village" after TiVo loses, just a matter of time.

Hey, I made my money off Tivo a long time ago...whatever happens now in your 'little village' is other peoples money, therefore other peoples problem. My cabbage has long since been re-invested since then...

 

[jacmyoung]

...whatever happens now in your 'little village' is other peoples money...

What village are you talking about? I am not part of that "investor village," believe me I have thought about joining in, but I know I wouldn't fit in there, not just because I have no money betting in their game, but my mother would slap me silly if she finds out I was part of that gang.

So you wouldn't bother if it is other people's money there, and yet the money there is all tied into this "marketplace" thing just you know, and "marketplace" is all you care about, not this court case. Guess I just can't figure it out, why are you here instead of there? Folks there can really use your marketplace insight, after all they are the TiVo investors, they can really use your advice now.

 

[jacmyoung]

Below is another interesting quote. The judge said the appeals court decision was 50/50 for the parties, but E* lawyer was more realistic: E* lost last time.

[TiVo lawyer] Q AND YOU HAD THE UNDERSTANDING THAT THE FEDERAL CIRCUIT IN ITS WISDOM AFFIRMED JUDGE FOLSOM’S RULINGS, RIGHT?

A WELL, AS I UNDERSTAND IT, THE FEDERAL –- ECHOSTAR WON ON–-
Q LET ME MAKE A –-
A –- TWO OF THE PATENTS AND LOST ON TWO. SO I’M NOT SURE IT WAS A COMPLETE AFFIRMANCE.
Q BUT IN ESSENCE –-
THE COURT: FIFTY-FIFTY.
MR. MCELHINNY [E* lawyer] : WE CONSIDERED IT AN AFFIRMANCE, YOUR HONOR.

 

[DodgerKing]

This discussion is still going on? This thread is lasting longer than the court case itself...

 

[rockymtnhigh]

sorry... thread will be back in a few minutes. Cleaning up some trash.

 

[rockymtnhigh]

ok, back in business.

 

[jacmyoung]

ok, back in business.

I don't know what you did but assume you have cleaned out a few TiVo usuals whose only skill is to flame, just a fair warning that those same ones had often received the same treatment else where, they would just come back in different names, shape and forms, and sometimes even with funnier avatars

 

[jacmyoung]

Now I know categorizing some of the TiVo folks as prefer to flame may sound unfair, but if you will let me explain. Earlier on a lot of the TiVo’s Q/A passages were spammed here, mostly by that TiVo d#$%head funny character, but a few posted by the others. As I pointed out earlier, most of those TiVo’s quotes should be in the trash. Examples are:

1) In Tivo’s opening statement a big deal was made about why E* did not inform the appeals court and Judge Folsom about the "secret design around." To which Judge Folsom asked, where in my order did you feel E* was obligated to inform the Court?

2) A lot was quoted about how TiVo pointed out that E* did not try to verify if every DVR had received the software update. But in there the judge said how good E* could verify the software update would not be part of his decision-making. The TiVo folks missed that part big time.

3) The part that really got the d#$%head in trouble of course was his spam related to TiVo’s lawyer questioning Charlie, it went on and on. Those TiVo folks had so much fun with those quotes you could feel it. But they again failed to realize, even the Q/A with Charlie will not be part of Judge Folsom’s decision-making.

Shocking isn’t it? Well let’s see what was discussed at the beginning of the hearing about which witnesses’ testimonies would be admitted:

MR. CHU: AND ONE OTHER ITEM, I THINK WE HAVE AGREEMENT THAT FACT WITNESSES, OTHER THAN THE WITNESS TESTIFYING, ARE EXCLUDED, WITH THE EXCEPTION OF COURSE WITH ONE PARTY REPRESENTATIVE ON EACH OF THEM.

THE COURT: SO THE RULE IS INVOKED AS TO FACT WITNESSES.
MR. MCELHINNY: IT IS, YOUR HONOR. OUR CLIENT REPRESENTATIVE IS DAN MINNICK FROM ECHOSTAR.

"Fact witnesses" refer to non-expert witnesses. Each party had one expert witness, their testimonies of course are the most important. But there are other non-experts called "fact witnesses." The reason they are called "fact witnesses" is because a non expert witness may not offer any opinions, only to state the facts, while expert witnesses may offer their opinions on the facts.

And had those TiVo folks, who had the privilege of having the access to the full transcripts from the beginning, know how to read, they would have avoided the spamming and stuck to what was important and relevant.

If you look at the above agreement, the only testimonies that will be admitted, aside from the two expert witnesses, are the testimonies of one "fact witness" from each side, and on the E* side, it will be Mr. Minnick’s testimonies. Mr. Minnick is the head of the E* software development if I recall correctly.

Therefore Charlie’s testimonies, along with the testimonies from a few other "fact witnesses" on both side, but mostly from the E* side, will be excluded.

Of course the natural follow up question is, what was Charlie doing there in the first place? Well my very first speculation after learning Charlie would appear at the hearing, was that he just wanted to keep an eye on his employees and his lawyers, making sure they did not waste his money at the local diners and bars. But that was tongue in cheek.

I think the reason Charlie was there was because he simply enjoys such occasions. He seems not shy from lawsuits, and often participates in the courtrooms, taking the stand all the time. I guess it is one of his hobbies, albeit an expensive one, but hey he can afford it, so what is there to question him?

So next time any of you TiVo folks become overly concerned about Charlie’s such hobby, please don’t bother. You are wasting your time thinking he might be scared away. The more risky the hobby, the more attraction, we all have our own hobbies, I am sure you all know what I mean.

 

[Thomas22]

If you look at the above agreement, the only testimonies that will be admitted, aside from the two expert witnesses, are the testimonies of one "fact witness" from each side,

Absolutely hilarious.

The rule being discussed is who is allowed inside the courtroom and who has to wait outside until they testify. Unbelievable. Just another example.

 

[jacmyoung]

Absolutely hilarious.

The rule being discussed is who is allowed inside the courtroom and who has to wait outside until they testify. Unbelievable. Just another example.

You got me there. Thank you for correcting me. I most certainly deserve your laugh.

I hope the rest of the information is of value.

I still stand by my statement that the above three testimonies will not impact the judge's decision. Waste of time.

 

[rockymtnhigh]

Not an order or anything, but can I suggest that you all have beat the testimony transcripts to a pulp, and maybe give them a rest.

It is exhausting just trying to skim this thread to merely maintain order.

 

[jacmyoung]

I have said before, I do not think our discussions here should have much to do with how the stocks may react. We are not stock analysts and have no say in how the stock prices should go, and I have no interest in how TiVo or E* stocks should perform.

It is therefore a puzzle to me why some TiVo investors pays so much attention to this thread.

I started luking there in the "village" after some new updates were posted about this court case, and of course also learned the level of bitterness there too. Apparently this court case is at the top of their minds.

But just for the record, I have no interest in the TiVo stocks, nor E* stocks.

I do have a suggestion, one should not always blame others for your frustration, in this case, look at what a lousy job TiVo has done, and try to blame them for a change:

1) Arguing for violation on the face of the injunction, while avoiding the term "Infringing Products" in the injunction altogether all the time.

2) Refusing to seek a discovery for colorable difference analysis until finally E* convinced the judge to do so.

3) Instead of seeking a case transfer, decided to try to dismiss that DE case, and in the process forced the DE judge to say the E* DE case was not forum shopping nor would have a chilling effect on TiVo.

4) Continued to argue E* should have informed the Court of the design around effort, so much so that the judge was forced to ask TiVo, just where did you think my order asked E* to inform?

5) Wasting all the time to argue that E* did not make a good faith effort to verify each DVR was updated, to which the judge said that part would not be relevant to his decision.

6) Failing to respond to the E* contention that "parses audio and video data" is "detecting start codes," which in my view will be one of the ultimate fatal blows to TiVo.

7) Last but not the least, coming up with a fantasy $220M figure so out of line that the judge simply said he could not get his head around how TiVo came up with that number.

If one refuses to cast any blame on his own guy, rather just bitches about how he is wronged by the other guys, then no one will have much sympathy for your frustration because you are just a sore loser.

 

[Curtis0620]

Maybe it is because of the financial windfall that this case will bring?

Isn't that what investors are most concerned with?

 

[jacmyoung]

Maybe it is because of the financial windfall that this case will bring?

Isn't that what investors are most concerned with?

Maybe, or very well be. But my point was, I don't care about either stocks and also do not think the discussion here has any impact on the current stock performance.

Investors in general do not look to a thread like this for guidance, they have their own analysts to rely on, therefore it is a puzzle to me how intensely those folks in their little "village" pay attention to this discussion, so much so that they get bent out of shape so easily reading the posts here.

 

[jacmyoung]

Below is the appeals court explaining why they overturned the infringement verdict on the hardware claims:

Secondly, we have construed two of the claim limitations more restrictively than the trial court’s instructions permitted. For that reason, even if the jury had reached a verdict with respect to the doctrine of equivalents we could not sustain that verdict merely upon finding that substantial evidence supported it.

One of the limitations alluded to above was the term "is separated" in the hardware claim limitations.

TiVo argued "is separated" meant "indexing" (shocking isn't it? You don't see the word "indexing" but somehow TiVo said it meant "indexing"), and E* argued that "is separated" meant separated into different buffers, not just indexing.

The appeals court actually agreed with TiVo that "indexing" was a correct step that was found in the E* old DVRs, only that it happened after the "is separated" step, and then agreed with E* on the "is separated" definition, which the old DVRs did not infringe on.

Now as far as the software claims, the trial court (Judge Folsom) never tried to construe the meaning of the term "the audio and video data," and E* now says, "the audio and video data" should be construed as "start codes." Which is to define the limitation of that term. And TiVo did not really respond to such E*'s attempt to define the limitation, probably because TiVo could not, E* was using TiVo's own testimonies at the trial and the patent specification to make the above argument.

Now it is time that Judge Folsom does the same thing, to determine if the term "the audio and video data" which he did not try to define back then, whether it should be defined according to E*'s contention, and in doing so he of course will first make sure E*'s such term is relevant, and then look at TiVo's counter argument on this item, and he will not be able to find anything meaningful from the TiVo side.

I wonder how one should place his bet given the above facts.

 

[vampz26]

Maybe it is because of the financial windfall that this case will bring?

Isn't that what investors are most concerned with?

Investors are equally concerned with the fact that they might lose...and the financial downpour it would cost. And when you are paying out the bum for lawyers all the time, a "no decision" is the same thing as losing.

Remember the first rule of gambling...you only bet what you can afford to lose.