Vol. 53_2012 E. Supp.

Recording over Old Standards: Tivo’s “More Than Colorably Different” Standard for Patent Injunction Contempt Proceedings

Abstract: On April 20, 2011, the U.S. Court of Appeals for the Federal Circuit in TiVo Inc. v. EchoStar Corp. overruled KSM Fastening Systems, Inc. v. H.A. Jones Co. and outlined a new analysis for patent injunction contempt proceedings when an adjudged infringer has modified an infringing product. In doing so, the court balanced two competing policies: protecting patentee’s exclusive rights through effective, inexpensive patent injunction enforcement and encouraging adjudged infringers to attempt good-faith design-arounds. This Comment argues that by transforming the KSM “more than colorable differences” standard from a procedural hurdle to a substantive requirement, the Federal Circuit successfully weighed these policies, fulfilling fundamental goals of the U.S. patent system.

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