modified products. The second step was to compare the modified products to the patent claims to determine if the modified product infringes. EchoStar argued that its redesign of the infringing products was more than colorably different by the KSM test. Upon a comparison between the infringing and modified products, the District Court held "any differences between the infringing and modified products are no more than colorable … As a result, contempt proceeding in this case are appropriate [by the KSM test]." Applying the second step of the KSM test, the District Court held "modifications do not affect elements of the disputed claims as construed … the infringing and modified devices may be treated as the same." Therefore, EchoStar Corp. continued to infringe TiVo Inc. patent '389 and was held in contempt of permanent injunction's Infringement Provision. With respect to the Disablement Provision, the District Court stated "even if EchoStar had achieved a non-infringing design-around, this Court would still find that EchoStar is in contempt of this Court's permanent injunction … [regarding] the Disablement Provision of this Court's order, which ordered EchoStar to 'disable the DVR functionality.'" EchoStar argued the Disablement Provision only covered original infringing products (non-software updated 50X and Broadcom DVRs). However, the District Court held that a plain reading of the order includes all 50X and Broadcom DVRs whether non-infringing redesigned or original infringing. The District Court ordered EchoStar Corps. to deactivate the DVR capability of all 50X and Broadcom DVRs regardless of the software utilized by the device; EchoStar Corps. did not comply and were held in contempt of the Disablement Provision of the permanent injunction. TiVo Inc. v. Dish Network Corp., Civil Action No. 2:04-CV-01 (E.D. Tex., September 4, 2009) This ruling determined the sanctions against EchoStar Corp. for violation the permanent injunction. The District Court awarded TiVo Inc. "$2.25 per DVR subscriber per month for the contempt period," which amounts to nearly $90 million in addition to the original jury award. Furthermore, EchoStar Corp. must reimburse TiVo Inc's legal fees for the contempt proceedings. The District Court amended its earlier injunction to require "EchoStar seek the court's approval before implementing future non-infringing workarounds to its DVR software." TiVo Inc. v. EchoStar Corp., No. 2009-1374 (Fed. Cir., March 4, 2010) Majority Opinion (Circuit Judges Mayer and Lourie) EchoStar Crop. appealed the District Court's contempt ruling on the grounds that issues relating to continued infringement are impermissible