Very informative post

Written by: stkhawk

A very Interesting Exchange
In my opinion, there was a very insightful, and interesting exchange that took place at the CAFC hearing in regards to the challenge by the Judges that the parties were changing their positions from their original infringement arguments at trial.

Note the following exchange with the Echostar lawyer, starting at about the 4:57 mark.

Q (Judge Rader): Turning to the infringement provision for a minute, don’t you really have to reverse your theories entirely from what you were before to win?

A: Your Honor, on one particular aspect of it, both TIVO and Echostar have switched positions.

Q (Judge Rader): But I am just asking you of course at this point.

A: We have switched positions your honor, and for good reason, we had a jury verdict against us that told us we lost on that argument. And there is something very unfair in the District Courts opinion in saying that we are bound by our losing position, and TIVO is not at all bound by its winning position.

Q (One of the other two CAFC Judges): In any event, the court said those positions dealt with hardware, and we are now dealing with software, isn’t that correct?

A: That is what the court said your honor, but no one made the argument that the word parsing meant something different in the two claims. In fact, both TIVO and Echostar took the position that this is one invention, the words mean the same thing in both. In fact the construction was the same in both. Now just to back up….(desperate change of subject imo).

^^^

So besides the fact that Echostar was forced by Judge Rader into confessing that they had changed infringement arguments from the first trial (which I think is a legal problem), I was intrigued by the question from the other CAFC Judge in regards to his statement of what the Distict Court had said.