Sanctions May Be Awarded for Violation of Injunction, Even Absent Infringement


A unanimous U.S. Court of Appeals for the Federal Circuit revised the two-step test set forth in KMS Fastening Systems for determining when a contempt order is appropriate for an alleged violation of an injunction by a modified product. However, a divided (7-5) court affirmed the district court finding of contempt of injunction and sanctions, but vacated and remanded findings of contempt of infringement, pending a finding on the issue of “colorable difference” between previously adjudicated infringing devices and devices incorporating an alleged design-around. TiVo, Inc. v. EchoStar Corp. et al., Case No. 09-1374 (Fed Cir. April 20, 2011) (en banc) (Lourie, J.)( Dyk, J., dissenting in part, joined by Judges Rader, Gajarsa, Linn, and Prost).

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