TiVo's contempt motion is out

[navychop]

Yes, it is very interesting reading. And has no joy in it for the gleeful Dish bashers. I especially liked:

"TiVo has already examined EchoStar’s new design and, unable to come up with any cogent argument that it still infringes the patent, has resorted instead to asking this Court to ignore whether EchoStar is still infringing and simply hold EchoStar in contempt for not putting new model numbers on set-top boxes where it changed the software."

Clearly, Echostar/Dish has a strong case. I think they will prevail.

 

[Curtis0620]

Yes, it is very interesting reading. And has no joy in it for the gleeful Dish bashers. I especially liked:

"TiVo has already examined EchoStar’s new design and, unable to come up with any cogent argument that it still infringes the patent, has resorted instead to asking this Court to ignore whether EchoStar is still infringing and simply hold EchoStar in contempt for not putting new model numbers on set-top boxes where it changed the software."

Clearly, Echostar/Dish has a strong case. I think they will prevail.

Why would a DISH filing not favor DISH?

 

[riffjim4069]

Yes, that was a very interesting read. Did anyone catch how E* argued that they complied with the court order to disable DVR functionality in almost all of the infringing models by inferring DVR functionality was momentarily disabled while reloading the new, non-infringing, software between Oct '06 - Apr '07?

“In sum…EchoStar succeded in disabling DVR functionality in the DP-501, DP-508, DP-510, DP-522, and DP-625 models, and replacing the software and hardware that had been found to infringe with EchoStar’s new, non-infringing software...”

While a great deal of the document seems plausible, the above argument was perhaps the lamest defense ever concocted. Perhaps the E* legal team can argue the infringing DVRs were disabled because the company sent out a flyer asking customers to power cycle these receivers.

Little did I realize that every time I rebooted my ViP622s that I was, in fact, disabling DVR functionality.:haha

 

[jayn_j]

This also explains why the 50X and other boxes lost the precision in freeze frame and single step back/front that it had prior to the late 2006 upgrade. If you look back in the threads, you will find a lot of complaining about this.

The accuracy was obtained by the indexing software and the ability to index into the second buffer. The loss of precision there can show that DISH did in fact change functionality to not infringe, and explains why we hated those updates.

 

[Jim5506]

IS DVR functionality NOT disabled during a reboot?

We are speaking of legal things here, where the ability to split hairs often determines who pulls the rabbit out of the hat.

 

[mike123abc]

Echostar's response is an interesting read. The question of course is if the new software manages to work around all of TiVo's patent. It will be a big victory for Dish if it does to avoid future licensing fees to TiVo. TiVo of course will still get the original judgement plus interest.

I still would like to see TiVo and Echostar make a deal. If Echostar wins this round I doubt there will ever be a deal.

 

[Curtis0620]

Echostar's response is an interesting read. The question of course is if the new software manages to work around all of TiVo's patent. It will be a big victory for Dish if it does to avoid future licensing fees to TiVo. TiVo of course will still get the original judgement plus interest.

I still would like to see TiVo and Echostar make a deal. If Echostar wins this round I doubt there will ever be a deal.

Is it more than colorably different? I doubt it.

 

[jayn_j]

Is it more than colorably different? I doubt it.

Did you read and understand the response filing? The TIVO patents are for a particular implementation using what was cutting edge technology ten years ago. The DISH response is that they don't need the dedicated hardware nor the indexing software to accomplish something that is almost as good. I was convinced from their filing that they no longer infringe.

Let's do a very simplified example. I am doing an application that needs to sort numbers. My engineers develop the bubble sort algorithm (ok, it's 1960) top quickly sort an array of numbers. A few months later, you need to do pretty much the same task and also implement bubble sort. I sue you and you lose eight years later. An injunction is filed. In that time, computer speeds have greatly increased and memory prices have come down. You can now afford to use some memory to create a hash table to perform a faster, but memory innefficient sort. You come back and claim the new software doesn't infringe.

I would agree. There is no commonality between a bubble sort and a hash sort, except that the end result is a sorted list. Note that I patented a bubble sort technique, not the concept of sorting.

This is a direct analogy. TIVO patented a technique to use a double buffer and an index tabble to create precise positioning in a data stream. The new dish software only uses a single buffer and nno indexing table, but makes use of newer technology and faster processors to achieve something close to the same result. That is colorably different by definition.

 

[Curtis0620]

Did you read and understand the response filing? The TIVO patents are for a particular implementation using what was cutting edge technology ten years ago. The DISH response is that they don't need the dedicated hardware nor the indexing software to accomplish something that is almost as good. I was convinced from their filing that they no longer infringe.

Let's do a very simplified example. I am doing an application that needs to sort numbers. My engineers develop the bubble sort algorithm (ok, it's 1960) top quickly sort an array of numbers. A few months later, you need to do pretty much the same task and also implement bubble sort. I sue you and you lose eight years later. An injunction is filed. In that time, computer speeds have greatly increased and memory prices have come down. You can now afford to use some memory to create a hash table to perform a faster, but memory innefficient sort. You come back and claim the new software doesn't infringe.

I would agree. There is no commonality between a bubble sort and a hash sort, except that the end result is a sorted list. Note that I patented a bubble sort technique, not the concept of sorting.

This is a direct analogy. TIVO patented a technique to use a double buffer and an index tabble to create precise positioning in a data stream. The new dish software only uses a single buffer and nno indexing table, but makes use of newer technology and faster processors to achieve something close to the same result. That is colorably different by definition.

I would be surprised if the DISH response did not paint a favorable picture for DISH.

 

[skyviewmark]

I want my trick play to work perfect again.. So I say Dish should buy Tivo so I can once again have good working Trick play.

 

[jayn_j]

I would be surprised if the DISH response did not paint a favorable picture for DISH.

With all due respect Curtis, you have now made 9 responses to this thread. Every single one has answered someone's point by revealing your position that DISH is the devil incarnate. :devil:

OK, we get it. You don't like Dish. Dish probably did you wrong sometime in the past. But what does that have to do with a detailed response I made to your earlier question about how the new software could be colorably different?

Of course the DISH response is going to be slanted, just like the TIVO response was slanted. You need to look around that stuff and look at the technical points. I was looking at the technical description about how they engineered around the TIVO patent. I have also read the claims and implementation details in the TIVO patent as well, and in my professional opinion, the Echostar engineers have successfully engineered around the TIVO patent claims.

Now, do you have any technical basis for arguing that other than the brilliant response that "DISH sucks"?

 

[Curtis0620]

With all due respect Curtis, you have now made 9 responses to this thread. Every single one has answered someone's point by revealing your position that DISH is the devil incarnate. :devil:

OK, we get it. You don't like Dish. Dish probably did you wrong sometime in the past. But what does that have to do with a detailed response I made to your earlier question about how the new software could be colorably different?

Of course the DISH response is going to be slanted, just like the TIVO response was slanted. You need to look around that stuff and look at the technical points. I was looking at the technical description about how they engineered around the TIVO patent. I have also read the claims and implementation details in the TIVO patent as well, and in my professional opinion, the Echostar engineers have successfully engineered around the TIVO patent claims.

Now, do you have any technical basis for arguing that other than the brilliant response that "DISH sucks"?

Just like you are so against TiVo.

Way to jump on someone that has a different opinion that you. DISH is not an angel in this. They were found guilty of willfull infringement. They were ordered to turn off the listed 8 DVR models and have not.

 

[Aqualung812]

Yes they did. They had to be turned off for the software update. Who said they had to be turned off for an amount of time?

 

[Curtis0620]

Yes they did. They had to be turned off for the software update. Who said they had to be turned off for an amount of time?

The injunction said until the expiration of the patent.

 

[jayn_j]

Just like you are so against TiVo.

Way to jump on someone that has a different opinion that you. DISH is not an angel in this. They were found guilty of willfull infringement. They were ordered to turn off the listed 8 DVR models and have not.

Not true. If you look at my history in this and other TIVO threads, I have generally argued for the validity of the TIVO patents, and the fact that people can't say they are invalid just because they are afraid they will lose something.

I never said DISH was an angel. I only said that I believed from my TECHNICAL investigation that they had successfully engineered around the problem. Yet again, your argument boils down to the fact that Dish is evil. Where is the basis?

Dish was ordered to turn off certain models that contained the infringing software. Dish's response is that they no longer infringe. Now, was that a valid response? That's for the court to determine. Dish is taking a big risk here, and I personally think they should have bought TIVO back at the start of this mess. Those are different points though. Again, my only point was that I believe the new software does not infringe the claims or description of the TIVO patent.

Curt, I am not jumping on you. I am asking you to give me something better than "Dish is evil". We already got that.

 

[mike123abc]

The injunction said until the expiration of the patent.

As Dish pointed out there is lot of case law saying that if they work around a patent they can keep them on as long as they do not infringe further. Of course the Dish briefing is favorable to Dish, but there are a lot of examples where injunctions were lifted. It is pretty doubtful that the court would say no matter if you are no longer infringing you can never operate the DVRs again especially when the hardware infringement was vacated by the appeals court, so only software matters.

TiVo will of course have to point out how the new software infringes. If it were a slam dunk for TiVo they would have pointed out in their court filing that the new software infringes. Dish provided them the source code and several outside opinions that the new software did not infringe a year ago. If you read the TiVo response they essentially say the code is too complicated for them to really analyze and they are sure it infringes in there somewhere, but they have not been able to produce the offending segments yet.

It could also be that TiVo is waiting until the last possible moment to file with a list of offending sections of code so they do not give Dish time to "code around" them.

We will just have to wait for the next court date to see if anything happens. I personally expect at that point TiVo will be asked to show further infringement if it exists. If TiVo cannot show further infringement they will be awarded the original judgement, interest and a further amount of damages that they would have suffered until Dish downloaded the new software to each model plus interest on that. TiVo will probably get a cool 200 million.

 

[riffjim4069]

The injunction said until the expiration of the patent.

I agree...E* is playing a dangerous game of parsing words with the court. The plain language of the order was clear and unambigious, "Disable DVR functionality." While the new DVR software may very well be an acceptable workaround to the TiVo patent thus rendering them non-infringing, E* should have requested approval from the court prior to implementing this questionable solution. Make no bones about it...I can't stand the bogus (my words) TiVo patents, but the courts along with the USPTO have repeated ruled in favor of their validity. E* should be obligated, compelled, or forced, into complying with the law.

 

[Curtis0620]

As Dish pointed out there is lot of case law saying that if they work around a patent they can keep them on as long as they do not infringe further. Of course the Dish briefing is favorable to Dish, but there are a lot of examples where injunctions were lifted. It is pretty doubtful that the court would say no matter if you are no longer infringing you can never operate the DVRs again especially when the hardware infringement was vacated by the appeals court, so only software matters.

TiVo will of course have to point out how the new software infringes. If it were a slam dunk for TiVo they would have pointed out in their court filing that the new software infringes. Dish provided them the source code and several outside opinions that the new software did not infringe a year ago. If you read the TiVo response they essentially say the code is too complicated for them to really analyze and they are sure it infringes in there somewhere, but they have not been able to produce the offending segments yet.

It could also be that TiVo is waiting until the last possible moment to file with a list of offending sections of code so they do not give Dish time to "code around" them.

We will just have to wait for the next court date to see if anything happens. I personally expect at that point TiVo will be asked to show further infringement if it exists. If TiVo cannot show further infringement they will be awarded the original judgement, interest and a further amount of damages that they would have suffered until Dish downloaded the new software to each model plus interest on that. TiVo will probably get a cool 200 million.

DISH has to prove their new software doesn't infringe, not Tivo. If they can't then they are definately in contempt. I think we can at least agree about this.

 

[JeremyL]

I agree...E* is playing a dangerous game of parsing words with the court. The plain language of the order was clear and unambigious, "Disable DVR functionality." While the new DVR software may very well be an acceptable workaround to the TiVo patent thus rendering them non-infringing, E* should have requested approval from the court prior to implementing this questionable solution. Make no bones about it...I can't stand the bogus (my words) TiVo patents, but the courts along with the USPTO have repeated ruled in favor of their validity. E* should be obligated, compelled, or forced, into complying with the law.

TIVO is also playing a dangerous game by filing a suit saying the DVR software infringes on their patents, but, when the infringing software is replaced, they suddenly switch to wanting the specified DVR models still shut down. It becomes kind of a circular arguement between the two that a judge will have to sort out.

I wonder if TIVO ever sent a cease and desist letter to DISH before they filed the suit?

Basically speaking, I think TIVO got a patent for developing software that utilizes hardware to multi-task. Hardware was able to multi-task long before TIVO came along with their DVR.

 

[md_paul]

It's interesting that the legal pdf document still contains the real text that is supposed to be "blocked out" in this redacted version. When I view the document on my linux workstation using the standard evince document viewer, all I have to do is highlight the blocked part and I can read the original text under the black blocks.

The adobe viewer on my Windows workstation will not permit this.

I'm surprised the text is actually there and just "covered"!