Now to understand the differences in cases...Are you talking about the Eolas case? If so,
Microsoft and Eolas settled in August, 2007:So it appears they did license the patent.Nope. The appeals process actually forced a retrial, so no injunction ever took effect.Actually, the DISH/SATS hardware part was not removed.
In that case (it could be another one of the MS cases I just do not remember for sure), before the settlement, the pantentee did motion for an injunction, and the court denied such motion. And if you had read the reasons behind why the court denied the injunction request, you would have seen
mike123abc's point.
The court argued that if they were to grant an injunction to prohibit MS from using the operating system, MS would have to update a software patch to all the millions of the users worldwide in a very short time in order to avoid a contempt, and that would have imposed an unreasonable burden on the consumers who would have to deal with all the bugs and troubleshooting, the logistic would have been too difficult to justify an injunction, from an equitable standpoint.
Instead the court imposed a large sum of damage on MS, paid to the patentee. MS soon started uploading the new patch, and a settlement also followed.
Notice how the court said MS could indeed avoid a contempt by uploading a software patch, only that the court thought it was too harsh, as a result the court denied the injunction all together.
DISH/SATS has been found guilty of infringing claims 31 and 61 of TiVo's Time Warp patent. Claim 31 is an apparatus, and Claim 61 is a process. The "hardware" has not been removed. The judgment in this case was on the receiver. And that injunction orders DISH/SATS to disable their receivers, for infringing the patent.
The injunctions in such cases had always been to prohibit the proudcts (in the Starbrite case), the services (in Footprint2.0 case), the processes (in Betow Food case) and any bunisess operations as a whole, even though the infringement is always only a part of that whole, often times a small part.
And in the end, if the infringers managed to design around that infringing part successfully, they always managed to avoid a contempt, regardless if the products/services/processes were already sold, or in the field, or being used by the consumers, or still in the warehouse, or still on the store shelves, or already buried in the sand, it did not matter.
What does matter is whether the infringer still infringes at the time the contempt decision is made. If the patentee fails to prove with clear and convincing evidence that the infringer still infringes, there will be no contempt, even though infringement has happened in the past.
That is because, the Court has ruled that
the only acts the injunction may prohibit, are the acts of infringement of the patent by the adjudicated devices, or acts of infringement by devices that are only colorably different than the adjudicated devices, to comply with the Rule, the injunction may only proscribe such acts.