Starbrite -jacmyoung said:The injunction here is as "iron-clad" as those in the Starbrite, the Footprint2.0, the Bestow Foods, the Price Fisher, KSM, and many many others. In all of those cases, the infringers were not in contempt aftere their design arounds were found more than colorable, no exception. This injunction is not special, only TiVo wanted to make it special, different than all the other ones. Judging by that I'd say they will fail.
Company ceased making the infringing formula in a boat polish; the Court ruled that accusing sales of product with the same name but with a modified formula is not in contempt.
Footprint 2.0 - The injunction was against a process implemented by software. The injunction only prohibited the service, "as was configured and described at trial". Changing the software means the service was no longer "as was configured and described at trial".
Barstow Foods - injunction issued against egg processor for infringement of patent which pasteurizes eggs. Infringer put several motions before the court regarding a workaround while patentee accused the infringer of contempt due to a merely colorably different process. Contempt denied, as the Court felt the infringer a) informed the Court of the workaround, and b) the workaround did not infringe with the data presented by the infringer.
Fisher Price - accused Safety 1st of continuing sales of infringing product against an injunction, and for refusal to follow the recall order in the injunction completely. Safety 1st was found in contempt except for those products they modified then sold.
KSM - A consent decree was signed by infringer Jones, stopping sales of a wall anchor (called Therma-Lock) and any others of the same type that infringed on KSM's patent. When Jones started selling more wall anchors (the Ultra-Lok I and II) which were the same type, KSM filed contempt charges for violation of an injunction. The injunction actually cited the complaint (more on the next quote), and the trial Court simply enforced the injunction as written, since Jones was selling anchors of the same type as the original Therma-Lock anchors. The Court of Appeals, however, overturned the finding of contempt by stating that "infringement must be found" before contempt can be granted.
Of all the above cases, only the Fisher Price contempt charge contains a component other than a listed product regarding continuing infringement. The recall order was not followed, and Safety 1st was found in contempt on that point. In this case the disable order was not followed.
An injunction that violates Rule 65(d), which basically means the injunction is a self-contained document and in a patent injunction enjoins ongoing infringement, is valid unless it is challenged. Even Walker v. Birmingham should make everyone understand that one does not violate a court, even if the order is "invalid". And now that the injunction is in full force and effect, it is valid and cannot be challenged.jacmyoung said:What TiVo is facing is, if TiVo is right that even if the act of using the DVRs no longer infringe on the patent, the injunction may still prohibit such act, then TiVo is asking the court to violate its own Rule 65d, the law, by trying to prohibit such legal act, such non-infringing act, even though the Court said very clearly no injunction can do that.
Besides, the injunction orders receivers in customers' hands that have been found infringing to be disabled. Just because there was some kind of modification made does not change the finding that those receivers were infringing.