It isn't necessary. Dish was enjoined from making, using, or selling any DVRs that are only colorably different from the adjudicated DVRs. There only needs to be a contempt hearing to determine whether the newer models violate that injunction.
TIVO vs E*
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No you didn't miss anything. It has not happened. It is one of the next logical steps if Dish does not reach a settlement with TiVo first. Even before that can happen there will be hearing to determine what penalties to apply to Dish for having violated the previous order. That is scheduled for July. Even that could go away if a settlement is reached first.
If Dish settles right away, it is very likely that no DVRs will be shut down at all.
It is a big loss for E*, but I hope they appeal.
The judge side-stepped, or wrongly accused E* of two things:
First the term "audio and video data" was never defined by the court, and yes E* did not try to ask the appeals court to define it either, because it was pointless back then.
But the new software by no longer analyzing the start code, i.e. the audio and video data, at a minimum should allow the court to further either agree, or disagree, what the audio and video data means, as E* argued it means the start codes.
Judge Folsom completely side-stepped this issue. But there is clear evidence that the appeals court may take a different view, as they did during the last appeal when they overturned the hardware claims verdict.
The second is Judge's view that E* believed they could ignore the order as long as they changed the software, which is not true, E* never believed they could simply ignore the order, they believed what they did had conformed to the order. Judge Folsom simply was wrong to accuse E* of ignoring the order.
Although it is entirely now up to Charlie to decide if he wishes to appeal or not. Correction, just saw Scott's post, I guess another round to come.
Regardless I must eat crow on this first round.
The judge side-stepped, or wrongly accused E* of two things:
First the term "audio and video data" was never defined by the court, and yes E* did not try to ask the appeals court to define it either, because it was pointless back then.
But the new software by no longer analyzing the start code, i.e. the audio and video data, at a minimum should allow the court to further either agree, or disagree, what the audio and video data means, as E* argued it means the start codes.
Judge Folsom completely side-stepped this issue. But there is clear evidence that the appeals court may take a different view, as they did during the last appeal when they overturned the hardware claims verdict.
The second is Judge's view that E* believed they could ignore the order as long as they changed the software, which is not true, E* never believed they could simply ignore the order, they believed what they did had conformed to the order. Judge Folsom simply was wrong to accuse E* of ignoring the order.
Although it is entirely now up to Charlie to decide if he wishes to appeal or not. Correction, just saw Scott's post, I guess another round to come.
Regardless I must eat crow on this first round.
"Even if EchoStar had achieved a non-infringing design-around, this Court would still find
that EchoStar is in contempt of this Court’s permanent injunction. EchoStar never complied with
the Disablement Provision of this Court’s order, which ordered EchoStar to “disable the DVR
functionality (i.e. disable all storage to and playback from a hard disk drive of television data) in all
but 192,708 units of the Infringing Products that have been placed with an end user or subscriber.”
...
By not disabling DVR functionality in adjudged receivers that had been placed with
end-users, EchoStar failed to comply with the plain language of this Court’s order.
...
Accordingly, this Court finds by clear and convincing evidence that a court order, which
required certain conduct by EchoStar, was in effect as of April 18, 2008, and that EchoStar failed
to comply with that order. Therefore, this Court finds EchoStar in contempt of this Court’s
permanent injunction. Specifically, EchoStar is in contempt of the Disablement Provision, which
ordered EchoStar to “disable the DVR functionality (i.e. disable all storage to and playback from a
hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been
placed with an end user or subscriber.”"
that EchoStar is in contempt of this Court’s permanent injunction. EchoStar never complied with
the Disablement Provision of this Court’s order, which ordered EchoStar to “disable the DVR
functionality (i.e. disable all storage to and playback from a hard disk drive of television data) in all
but 192,708 units of the Infringing Products that have been placed with an end user or subscriber.”
...
By not disabling DVR functionality in adjudged receivers that had been placed with
end-users, EchoStar failed to comply with the plain language of this Court’s order.
...
Accordingly, this Court finds by clear and convincing evidence that a court order, which
required certain conduct by EchoStar, was in effect as of April 18, 2008, and that EchoStar failed
to comply with that order. Therefore, this Court finds EchoStar in contempt of this Court’s
permanent injunction. Specifically, EchoStar is in contempt of the Disablement Provision, which
ordered EchoStar to “disable the DVR functionality (i.e. disable all storage to and playback from a
hard disk drive of television data) in all but 192,708 units of the Infringing Products that have been
placed with an end user or subscriber.”"
Look at the bright side. At least now we can both agree that the courts and judges do make mistakes, and just because a judge says it, doesn't necessarily guarantee it is right or even fair. Oh well...we all learned something here.
Of course judges can make mistakes, that is why we have appeals, but I never agreed with you therefore judges' rulings are less significant or irrelevant in the scheme of things.
Judge's decisions are the most important when it comes to a lawsuit.
What are you saying, there should not be courts because judges are human like us?
Or what is your suggestion to have a court system that is not "flawed?"
No, it supports your opinion that the court system is fundamentally flawed.
For others, it might just validate our system of justice.
My suggestion is to accept its flaws and manage your expectations accordingly, because be it either a speeding ticket, divorce court, or even a patent trial...the system is flawed, your own statement supports it, and history proves it. The only thing one can do is deal with it and don't expect to get kissed first!
...don't expect to get kissed first!
TiVo has been kissed twice already, so what you say no one should have such expectation?
As for one that is not been kissed, I offer the following if E* is to appeal:
The difference between Judge Folsom and the appeals court is, Judge Folsom relied almost exclusively on the patent claims themselves as TiVo suggested, while the appeals court relied heavily on the patent specifications and as a result the appeals court narrowed two claim constructions in the hardware claims and overturned the hardware claim verdicts.
The question now is whether E* at this stage may still ask the appeals court to narrow some of the claims constructions in the software claims by looking at the patent specifications, which Judge Folsom never did.
It is clear this cannot be done if the elements of the claims had already been construed by the court before, such as the term "parse" already been construed as "analyze." It is done with. But the term "audio and video data" was never construed by the court before, yet it is undoubtedly one of the elements of the software claims at issue. Also there is this "temporary stored" term.
If E* indeed appeals, whether the appeals court stays the order or not will probably offer a clear indication whether the appeals court will allow the constructions of the terms that had never been constructed before. If E* is not allowed to argue on the constructions of any terms in the software claims this time even if the terms had not been constructed before, then I’d say E* will have little chance, and for that reason there is little reason for the appeals court to stay the order as Judge Folsom’s ruling is straight forward, as long as the patent specifications need not be addressed.
It means Dish will seek an appeal and ask the court to delay (stay) shutting the named models down. If Dish does not get the stay, the named DVRs could be shut down unless Dish negotiates a settlement with TiVo to avoid it. If Dish decides not to negotiate then those DVRs, all SD models, could get shut down.
Interesting...
In simple terms, Dish cannot let their DVR's be shut off. They either need to settle with Tivo or buy Tivo...the former is more likely to happen than the latter...
In simple terms, Dish cannot let their DVR's be shut off. They either need to settle with Tivo or buy Tivo...the former is more likely to happen than the latter...
good question, Id like to know the same. I can see either Dish purchasing a license from Tivo or waiting it out with appeal
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