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VirnetX Holding Corp Message Board

  • peterrbrady peterrbrady Aug 15, 2013 3:25 AM Flag

    "More Than Colorably Different"

    KSM v. H.A Jones Company contained a two step inquiry to determine "more than a colorable difference."
    TiVo v. Echostar ( 2011) reversed that as "unworkable" and set the parameters for a new test. " the analysis must focus not on differences between randomly chosen features of the product found to infringe in the earlier infringement trial and the newly accused product, but on those aspects of the accused products that were previously alleged to be, and we're a basis for, the prior finding of infringement, and the modified features of the newly accused product....where one or more of those elements previously found to infringe has been modified, or removed, the court must make an inquiry into whether that modification is significant. If the differences between the old and new elements are significant, the newly accused product as a whole shall be deemed more than colorably different from the adjudged infringing one...
    The court must also look to the relevant prior art, if any is available, to determine if the modification merely employs or combines elements already known in the prior art in a manner that would have been obvious to a person of ordinary skill in the art at the time the modification was made. A nonobvious modification may well result in a finding of more than a colorable difference. Where useful, a district court may seek expert testimony."
    So as per above, the judge will need to do some continued analysis on the more than "colorably different" issue before deciding on the infringement questions or these products.
    Otherwise, he may be ready to indicate what the royalty rate will be as that question may require no further discussion.
    Peter

 
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