Markets Wired

The Federal Trade Commission has filed an amicus brief before the full U.S. Court of Appeals for the Federal Circuit in a case concerning the standards courts should use when considering whether to grant a patent holder’s motion for contempt of a previously entered injunction against acts of infringement (TiVo, Inc., vs. EchoStar Corporation). The FTC’s brief supports neither of the parties and takes no position on the specific facts of the case. The agency recommended that in shaping the appropriate standards, the court consider how making contempt proceedings and contempt sanctions too easily available could dampen incentives for follow-on innovation, but also should bear in mind how enforceable injunctions can serve as an important prerequisite to innovation and entry.

A divided Federal Circuit panel previously held that a district court had properly evaluated Echostar’s post-judgment conduct in contempt proceedings, and held Echostar in contempt based upon its finding that Echostar had infringed TiVo’s patents despite its design-around efforts.

The FTC vote approving the amicus brief filing was 3-2, with Commissioners William E. Kovacic and Edith Ramirez dissenting. (FTC File No. P082105; the staff contact is Ruthanne Deutsch, Office of the General Counsel, 202-326-3677.)

Copies of the documents mentioned in this release are available from the FTC’s website at http://www.ftc.gov and from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. Call toll-free: 1-877-FTC-HELP.

(FYI 32.2010.wpd)