Elder on Contempt after TiVo

Nina Elder, a third-year law student at the University of Minnesota, has published an excellent student note titled The Contours of Contempt in Patent Law After TiVo, Inc. v. EchoStar Corp.: An Empirical Study, 25 Minnesota Journal of Law, Science & Technology 145 (2023).  Here is a link to the paper, and here is an excerpt from the introduction:

Contempt is a “potent weapon” patent owners can use to enforce injunctions. . . . The Federal Circuit first established the test for contempt of a patent injunction in KSM Fastening Sys. Inc. v. H.A. Jones Co., but only provided limited and confusing guidance on how it should be applied. In 2011, it modified and clarified this test in TiVo Inc. v. EchoStar Corp. This change prompted much speculation as to the effects on contempt in patent cases moving forward, with the prevailing view being that it would be easier to initiate contempt proceedings, but harder to succeed on contempt motions as a whole. Though more than eleven years have passed since the decision and empirical research into patent injunctions has grown, no studies have quantified TiVo’s effects on contempt outcomes.

 

This Note examines TiVo’s impact on the landscape of contempt by analyzing a new dataset of contempt motions filed between 2000 and 2022. Part II provides an overview of contempt of injunctions in patent law, how the test for contempt was altered in TiVo, and the effects many predicted the case would have on contempt outcomes. It also covers the limited empirical research previously conducted on this topic. Part III divulges the methodological design and limitations for this research. Part IV describes the results of this study and the finding that though initiation of contempt proceedings did increase after TiVo, the proportion of contempt motions granted did not increase. It proposes that the chance of prevailing on a contempt motion did not decrease because TiVo did not, in fact, heighten the standard for contempt. This Note concludes that despite concerns, TiVo succeeded in its goal of clarifying contempt law and increased access to contempt proceedings without excessively restricting the chance of success on a contempt motion.