Taser's Contempt Motion Denied Where Colorable Differences Existed Between Infringing Product And Newly Accused Product

After the district court found that defendant's electronic control device literally infringed certain claims of a patent owned by Taser and denied defendant's summary judgment motion on defendant's claims of invalidity and unenforceability, Taser filed a motion for contempt and an application for an order to show cause. In its motion, Taser asserted that Karbon Arms had purchased defendant's assets as part of an insolvency proceeding and that Karbon Arms was producing the Karbon MPID which was essentially the same as the enjoined product sold by defendant.

The district court then noted that "[i]n order to enforce an injunction in a patent case, the party seeking to do so 'must prove both that the newly accused product is not more than colorably different from the product found to infringe and that the newly accused product actually infringes.' TiVo Inc. v. EchoStar, 646 F.3d 869, 882 (Fed. Cir. 2011) (en banc)." To apply the "more than colorable differences" test, the court must first compare the features that were found infringing to the corresponding feature of the newly accused products. If the court finds that only colorable differences exist, then the court must determine whether the newly accused product infringes the relevant claims.

The district court then turned to the specific products at issue. As part of this analysis, the district court noted that it had only found infringing the newer products made by defendants (stun guns that used a full-wave rectifier) and not the older products made by defendants (stun guns that used a half-wave rectifier). "After reviewing the parties' summary judgment briefing and the Court's summary judgment order, the Court concludes that the only version of the S-200 that the Court found infringed claims 2 and 40 of the '295 patent was the newer, full-wave rectifier, version of the S-200. Because the Court made infringement findings only on the newer version of the S-200, the injunction does not also cover the older version of the S-200. In making its decision on contempt, the Court therefore will compare the newer version of the S-200 with the Karbon MPID to determine whether Mr. Gruder and Karbon Arms have violated the injunctions."

The district court next analyzed whether Taser had proven by clear and convincing evidence that the Karbon MPID was not colorably different from the newer version of the S-200. Taser asserted that the Karbon MPID is not more than colorably different than the new version...