There are hundreds of millions of dollars at stake, but that’s not why the lawsuit is so important. Businesses throughout the country, in all industries, are waiting for the Federal Circuit’s decision in TiVo Inc. v. EchoStar Corp. because the en banc ruling could significantly shift the balance of power between patent owners and infringers—in patentees’ favor. Designing around patents could become far more difficult, and the penalties for failure could be far more severe.
At issue is how courts should handle allegations of repeat infringement—claims that an adjudged infringer is infringing the same patent again. Should that infringer be treated like any other defendant? Or can that company face an abbreviated legal process which provides fewer legal defenses and harsher penalties? In other words, can the accused simply be tried for contempt?
It’s well settled that contempt proceedings cannot always be used against repeat infringers. Contempt is available only if a defendant’s redesigned item is not “colorably different” from the item that previously had been found infringing, so the redesigned item has no “substantial open issues with respect to infringement.”