ePlus Inc. v. Lawson Software, Inc. (946 F. Supp. 2d 472, 2013)

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on plaintiff ePlus, Inc.’s (“ePlus”) MOTION TO SHOW CAUSE WHY LAWSON SOFTWARE, INC. SHOULD NOT BE HELD IN CONTEMPT (Docket No. 798). For the reasons set forth below, the Court concludes, by clear and convincing evidence, that Lawson Software, Inc. (“Lawson”) is in contempt of the May 23, 2011 Permanent Injunction (Docket No. 729). Accordingly, ePlus’ motion will be granted.

PROCEDURAL BACKGROUND

On May 19, 2009, ePlus filed this action against Lawson for infringement of three patents: U.S. Patent Nos. 6,023,683 (the “'683 Patent”), 6,055,516 (the “'516 Patent”), and 6,585,173 (the “'172 Patent”). Following a three week trial, a jury determined that the '683 Patent and '172 Patent were infringed, and it found that the '562 Patent was not infringed, by Lawson’s products. The jury further found that all asserted claims of the patents-in-suit were valid. On May 23, 2011, the Court issued a permanent injunction enjoining Lawson, its officers, agents, and employees and “any person in active concert or participation with them” “from directly or indirectly making, using, offering to sell, or selling within the United States or importing into the United States” certain product configurations (so-called Configurations Two, Three, and Five) and services. (Docket No. 729). Lawson appealed to the United States Court of Appeals for the Federal Circuit and ePlus cross-appealed.

On September 9, 2011, while the appeals were pending, ePlus filed its motion for order to show cause, alleging that Lawson was in contempt of the injunction. The focus of ePlus’ contempt motion concerned a module of the adjudged infringing system configurations called Requisition Self-Service (“RSS”). After the trial, Lawson redesigned RSS and created Requisition Center (“RQC”) in its stead. ePlus alleged that the new RQC product was not more than eolorably different from RSS and that it infringed ePlus’ patents. On November 28, 2011, the Court entered a Scheduling Order (Docket No. 849) setting the contempt proceedings to commence on February 27, 2012.

By Memorandum Opinion and Order dated February 21, 2012 (Docket No. 917), following extensive briefing, the Court found that Lawson had waived attorney-client privilege for a number of documents relating to the redesign process and ordered their production. On February 24, 2012, the Court entered an Order (Docket No. 930) staying the contempt proceedings to permit Lawson to seek a Writ of Mandamus in the Federal Circuit to review the Order of February 21. On August 16, 2012, the Federal Circuit denied the petition for a Writ of Mandamus (Docket No. 957). The Federal Circuit’s Order was followed by ePlus’ Motion to Enforce the Order of February 21 (Docket No. 958) which was, in turn, granted in part and denied in part by an Order dated December 14, 2012 (Docket No. 988).

Meanwhile, on November 21, 2012, the Federal Circuit had issued its decision reversing-in-part, vacating-in-part, affirming-in-part and remanding the action. In its decision, the Federal Circuit found that claim 1 of the '172 patent and claim 3 of the '683 patent were invalid for indefiniteness. ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 519-20 (Fed.Cir.2012). The Court of Appeals also held that claims 28 and 29 of the '683 patent were not “supported by substantial evidence” and vacated the judgment of infringement as to those claims. Id. at 521-22. The Court of Appeals, however, affirmed the finding of infringement as to claim 26 of the '683 patent and affirmed the breadth of the injunction. Id. at 520, 522. ePlus filed a petition for rehearing and rehearing en banc. On January 29, 2013, the Federal Circuit denied that petition. The mandate of Federal Circuit was received and entered on February 11, 2013 (Docket No. 1006). The contempt proceedings thereafter resumed in this Court.

A hearing was held on the contempt motion on April 2, 2013 through April 9, 2013. Closing arguments were held on April 26, 2013. Pursuant to an Order entered January 24, 2013 (Docket No. 1002), ePlus filed post-hearing briefs on colorability (Docket No. 1057), infringement (Docket No. 1058) and remedies (Docket No. 1059). Lawson filed responses (Docket Nos. 1070, 1072, & 1072). ePlus filed replies (Docket Nos. 1073, 1074, & 1075). The parties also filed proposed findings of fact and conclusions of law (Docket Nos. 1060 & 1069). The issues were thereafter argued.

FINDINGS OF FACT

The Redesign Process

Following the jury verdict in this action, Lawson began efforts to design around ePlus’ patent. Lawson had its first meeting to that end on the day after the jury verdict and placed Dale Christopherson in charge of redevelopment. Christopher-son’s redesign team consisted of a variety of Lawson individuals including technical people and representatives of the legal department. Principally, Christopherson’s team included Bruce McPheeters, Lawson’s General Counsel; members of the law firm that represented Lawson during the underlying infringement action; Todd Dooner, who was responsible for actually writing the computer code; and Keith Lohkamp, who was to represent the “business side” of Lawson during the design effort. The team also included Keith Knuth, a product architect; Stephanie Lim, who was in charge of quality assurance testing; Dwight DeLancey, a software engineer; Darci Snyder, who was responsible for product management; and Donna Hircate, whose role in the redesign process is unclear. In addition, Lawson hired an independent attorney to assist with the redesign process.

The redesign team began work on February 8, 2011. It began unit testing of the redesigned product on March 1, 2011 and held a “start-up meeting” on March 30, 2011. The new product was released to customers on May 18, 2011. Patch 1 to the new product was made available to customers on June 9, 2011.

Lawson’s initial plan was to present the redesigned product to the Court for approval before its public release; specifically, Lawson intended to present the product to the Court at the hearing scheduled on whether to enter a permanent injunction. Lawson decided not to follow that course.

The redesign team proposed several alternative “redesigns” that the Lawson attorneys rejected as being insufficient. Patch 1 was implemented at the behest of Lawson’s attorneys who were concerned that the redesign effort had not gone far enough. However, additional redesign proposals were rejected because they would unacceptably limit the functionality of Lawson’s software. For example, Lawson considered, and rejected, changes that would remove the search capabilities of the systems, the requisition building capabilities, and the purchase order creation capability completely. Most notably, the redesign team and the attorneys disagreed over whether the inventory checking capability of the product would, or must, be removed from the new product. The views of counsel on the subject were rejected by Christopherson, and the change was not made.

The Redesigned Product: RQC

RSS was the only component of the Infringing Configurations of Claim 26 of the '683 patent that was modified. One of the primary goals of the redesign process was to minimize the impact on Lawson’s current customers. For the present purposes, Lawson relies on two changes made to RSS which it claims renders RQC “more than eolorably different” than RSS. First, Lawson made changes to RSS intended to prevent a customer from simultaneously using Item Master and Punchout in the same session. Essentially, RQC requires that a user using Item Master and Punchout place the products ordered from each on a different requisition form than the other. On May 18, 2011, Lawson released RQC with this modification.

The second change took place following the release of RQC when Lawson developed and released so-called “Patch 1.” Lawson approved the development of Patch 1 on June 3, 2011 and released it on June 9, 2011. Patch 1 expanded the Item Master/Punchout “limitation” to sessions involving multiple Punchout vendors, so that once a user accesses a Punchout vendor’s website, RQC prevents the user from accessing another Punchout vendor’s website without closing the first window. As a result of RQC and Patch 1, while a user can place multiple items from Item Master on one requisition or multiple items from a single Punchout vendor on one requisition, the user can no longer combine items from Item Master with items from Punchout vendors on the same requisition nor can he combine items from multiple Punchout vendors onto a single requisition. Further, as a general principle, there is no way for Lawson’s users to disable these changes in the RQC module.

The foregoing findings of fact provide a basic factual context for discussion of the procedural and substantive legal issues relevant to the contempt hearing. Further findings of fact are made as appropriate in the ensuing legal discussion and conclusions.

DISCUSSION

The TiVo Test

Contempt is a “severe remedy and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant’s conduct.” Cal. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609, 618, 5 S.Ct. 618, 28 L.Ed. 1106 (1885). The analysis for whether a party should be held in contempt for violating an injunction issued in a patent infringement case as the result of its redesigned product is governed by the decision of the United States Court of Appeals for the Federal Circuit in TiVo Inc. v. EchoStar Corp., 646 F.3d 869 (Fed.Cir.2011). TiVo instructs that a contempt proceeding is appropriate upon a “detailed accusation from the injured party setting forth the alleged facts constituting the contempt.” Id. at 881.

The contempt analysis is two-fold: “the party seeking to enforce the injunction 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.” Id. at 882. Throughout the analysis, the Court must be mindful that “legitimate design-around efforts should always be encouraged as a path to spur further innovation.” Id. at 883 (citing State Indus. Inc. v. A.O. Smith Corp., 751 F.2d 1226, 1236 (Fed.Cir.1985)). Nonetheless, “a defendant’s diligence and good faith efforts are not a defense to contempt.” TiVo, 646 F.3d at 880.

The Federal Circuit has emphasized that the “not more than colorably different” test should not be guided by the question of whether the new product actually infringes the patent. See TiVo, 646 F.3d at 882 (“Today, we reject that infringement-based understanding of the colorably different test.”). Rather, the focus must be on “the differences between the features relied upon to establish infringement and the modified features of the newly accused products.” Id. Further,

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 product that were previously alleged to be, and were a basis for, the prior finding of infringement, and the modified features of the newly accused product. Specifically, one should focus on those elements of the adjudged infringing products that the patentee previously contended, and proved, satisfy specific limitations of the asserted claims. 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.

Id. At the most basic level, a product is not more than colorably different from another product if it “performs substantially the same function in substantially the same way with substantially the same result.” Arlington Indus., Inc. v. Bridgeport Fittings, Inc., Civ. A. No. 3:02-cv-134, 2013 WL 1149230, at *3 (M.D.Penn. March 19, 2013) (citing Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950)).

The precise meaning of the Federal Circuit’s instruction that the Court frame the “more than colorably different” analysis in perspective of “those elements ... that the patentee previously contended, and proved,” id. at 882, has been a source of considerable debate in this action. Lawson has doggedly maintained that the Court must first examine the trial record in the underlying infringement action and determine which arguments the jury accepted in finding that Lawson’s product infringed. See generally (Def. Br. on More than Colorable Differences (Docket No. 1070) at 3-4). The parties agree that “only product features relied upon to prove infringement at trial, and subsequently modified by the infringer, are relevant.” (Pl. Br. on TiVo (Docket No. 833) at 4); (Def. Br. on TiVo (Docket No. 837) at 5).

TiVo plainly instructs that the Court must compare the elements of the infringing products with the elements of the newly designed product. “If those differences between the old and new elements are significant, the newly accused product as a whole shall be deemed more than eolorably different....” TiVo, 646 F.3d at 882. The question, then, is where the Court should look to determine which “elements” were found to infringe and to what extent, if any, the Court is permitted to inquire into the bases underlying the jury’s determination that the original product infringed.

Lawson is undoubtedly correct that that ePlus is confined, in a contempt proceeding, to the theories of infringement that were advanced in the underlying infringement action and, similarly, is bound by the results in that action. As Lawson correctly argues, “where a plaintiffs infringement argument against a newly-accused product differs from that previously presented to the jury, [a] defendant is entitled to have a jury, not the Court, adjudicate the new theory.” (Def. Br. on Colorable Differences at 6); see also Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 154 F.3d 1345, 1350 (Fed.Cir.1998); Arbek Mfg., Inc. v. Moazzam, 55 F.3d 1567, 1570 (Fed.Cir.1995).

Ordinarily, the Court would turn to the complaint to determine what was “contended.” However, the complaint in this action contains nothing more than the cursory allegations that ePlus owns a patent, that Lawson “makes, uses, sells, offers to sell and/or imports” certain “products, services, methods, or processors that infringe” the patent, and that ePlus is, therefore, entitled to damages and injunctive relief. See (Complaint (Docket No. 1) at ¶¶ 20-23). However, shortly before the Initial Pre-Trial Conference, the parties agreed to a scheduling and discovery order which required, inter alia, ePlus to file “a statement identifying, for each Defendant[,] the product, products, or part thereof, that are accused of infringement, and, for each such product or part thereof, shall identify on an element-by-element, claim-by-claim basis how such product or part thereof infringes.” See (Proposed Discovery Plan filed November 18, 2009 (Docket No. 121)). As a result, on December 8, 2009, ePlus filed “Infringement Claim Charts” detailing the manner in which ePlus alleged that Lawson’s products infringed upon three of ePlus’ patents. See (Exs. To PL’s Infringement Claim Charts (Docket No. 133) (“Infringement Chart”)). These claims, as therein outlined, were pursued by ePlus in discovery and at trial. The Court concludes that the proper vehicle through which to determine what ePlus “contended” to be infringing is by an examination of the Infringement Charts as they apply to the relevant claims of the relevant patent.

The next question is the manner in which the Court is to determine what ePlus “proved” at the original trial. See TiVo, 646 F.3d at 882 (noting that the Court must focus on “those elements of the adjudged infringing products that the patentee previously contended, and proved, satisfy specific limitations of the asserted claims.”) (emphasis added). Lawson insists that the proper approach is for the Court independently to examine the underlying trial evidence in an effort to determine exactly what the jury found. The Court consistently has taken the view that “the Federal Circuit, in TiVo, did not intend for district courts to attempt to devine [sic ] what was in the mind of juries when they returned their verdicts.” See Memorandum Opinion dated March 27, 2013 (Docket No. 1035) at 7. The approach urged by Lawson runs afoul of a fundamental principle of our jurisprudence: that “the controlling distinction between the power of the court and that of the jury is that the former is the power to determine the law and the latter to determine the facts.” Dimick v. Schiedt, 293 U.S. 474, 485, 55 S.Ct. 296, 79 L.Ed. 603 (1935). Indeed, as a general matter, “it would be constitutionally impermissible for the district court to re-examine the jury’s verdict.” Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1107 (Fed.Cir.2003); see also Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1545 (Fed.Cir.1983) (“Jury verdicts must be treated with great deference. The Seventh Amendment to the Constitution preserves the right to trial by jury in suits at common law and also provides that United States Courts shall not re-examine facts tried by jury except under the rules of common law.”).

Lawson relies, principally, on two decisions to support its contention that the Court must “go[ ] back and look[ ] at the evidence” at the original trial in order to determine what was “contended and proved” at trial. See (Tr. of Closing Argument (Docket No. 1078) at 24:12-18). First, Lawson points to Taser International, Inc. v. Stinger Systems, Inc., No. CV07-42-PHX-JAT (D.Az. Jan 18, 2012). In Taser, the district court had decided the underlying ease on summary judgment and later was faced with the claim that a redesigned product was “apart from a few cosmetic changes, essentially the same” as the infringing product. Taser, Slip Op. at 2. After setting forth the TiVo “colorable differences” test, the district court examined its summary judgment opinion, and the findings contained therein, to determine the nature of the previous infringement and the relevant features of the product in order to determine the elements relevant to the colorability analysis. The court detailed those features that it had “emphasized” in its opinion finding infringement as well as the evidence upon which it relied in arrived at its conclusion. Id. at 8. The court then examined the features of the new product in perspective of those features. After its analysis, the Taser court concluded that the products were more than eolorably different and that, therefore, a contempt proceeding was not appropriate. Id. at 10.

Taser is not helpful to the present analysis simply because it was a summary judgment case. A court assessing the reasons underlying its own decision does not threaten the “traditional sanctity of jury verdicts” nor does it invite “speculation as to the manner in which the jurors arrived at it.” Midwest Underground Storage, Inc. v. Porter, 717 F.2d 493, 501 (10th Cir.1983).

Second, Lawson emphasizes the decision in nCube Corp. v. SeaChange International, Inc., 809 F.Supp.2d 337 (D.Del.2011). There, the injunction at issue followed a jury verdict. In nCube, the district court compared the trial testimony with the testimony at the contempt hearing. See e.g. id. at 355 (“The Court concurs that [the witnesses] hearing testimony was consistent with his trial testimony.”). The court went on to articulate the expert’s trial testimony and then contrast it with the record established during the contempt hearing. Id. Indeed, the nCube court addressed the argument that, because the plaintiffs expert had testified at trial that a particular feature of the infringing product satisfied a particular limitation, the removal of that feature made the product more than eolorably different. Id. at 354. The court rejected that argument both on the basis that the expert had not limited his opinion to that particular feature and on the basis that TiVo permitted a contempt finding if the infringing feature was merely replaced with a component that “does not amount to a significant change.” Id. at 354 n. 6, 355.

The nCube court provided no analysis or explanation for its decision to return to the trial testimony other than the statement that “any analysis about whether colorable differences exist with respect to the modified ITV product must focus on how AR-RIS alleged and proved to the jury that” the original product infringed. Id. at 354. The court neither addressed nor acknowledged the problems inherent in a court’s attempt at analyzing what the jury found and why.

That renders nCube of no utility because “[cjourts have always resisted inquiring into a jury’s thought processes.” United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). nCube offers no reason to deviate from that time-honored practice. The Court is ill-equipped to attempt to determine which evidence the jury relied upon to reach which conclusion, and long-standing policy counsels against such an endeavor. It would impermissibly intrude upon the sanctity of the jury verdict for the Court to assess the trial evidence and attempt any conclusion as to what was proven, beyond the fact of the verdict itself. In sum, the Court will assess what was “contended” in light of ePlus’ claims at the commencement of the action and what was “proved” is the verdict of the jury, which stands for itself.

The Features Contended and Proved

Claim 26 of United States Patent No. 6,023,683 (the “'683 Patent”) claims:

A method comprising the steps of: maintaining at least two product catalogs on a database containing data relating to items associated with the respective sources; selecting the product catalogs to search; searching for matching items among the selected product catalogs; building a requisition using data relating to selected matching items and their associated source(s); processing the requisition to generate one or more purchase orders for the selected matching items; and determining whether a selected matching item is available in inventory.

Elec. Sourcing & Sys. Method, U.S. Patent No. 6,023,683 (filed Aug. 10, 1994) (issued Feb. 8, 2000).

In its Infringement Chart for the '683 patent, (Docket No. 133-2), ePlus laid out the manner in which it believed that Lawson’s products infringed Claim 26. (Id. at 56 — 69). ePlus advanced several theories regarding the infringement of each element of Claim 26. As a result of the Federal Circuit decision in ePlus, the only claim remaining for which a valid finding of infringement remains is Claim 26 of the '683 patent. See ePlus, 700 F.3d at 521 (affirming the jury verdict as to Claim 26). Accordingly, the features found to infringe at trial must necessarily be those that infringed Claim 26 for purposes of the TiVo analysis.

In essence, ePlus contended that Lawson’s products infringed Claim 26 of the '683 patent in the following ways: First, that the Item Master component of the Inventory Control module and Purchase Order application allowed the importation of multiple product catalogues into a centralized database and/or the “Punehout Procurement” module allowed a used to access multiple supplier catalogues through vendor websites and “digital marketplaces.” (Infringement Chart at 56-63).

Second, that a user could “select among (1) catalogs hosted by suppliers [i.e., Punehout vendors], (2) an internal database containing multiple supplier catalogs [i.e., Item Master], and (3) digital marketplaces with multiple suppliers’ catalog data.” (Id. at 63). In addition, when a Lawson user elected to use the Punehout module, the user would be able to select products from the external website (which appeared in a “separate browser session”), place them in an “electronic ‘shopping cart,’ ” and return “the selected cart contents to the Lawson Requisitions Self-Service application.” (Id. at 64).

Third, ePlus alleged that Lawson’s systems allowed users to search the product catalogues based on criteria such as product name, manufacturer code, or partial descriptions. (Id. at 64-65).

Fourth, ePlus contended that Lawson’s products would allow the creation of a single requisition from Item Master or Punehout. (Id. at 65-66). Specifically, ePlus identified “Requisition Self-Service” as enabling “web-based requisitioning from approved product catalogs.” (Id. at 66).

Fifth, ePlus contended that Lawson’s products had the ability to generate purchase orders from the requisitions, specifically emphasizing the ability of Requisition Self-Service (“RSS”) to automatically generate purchase orders for items on approved requisitions with no additional data input. (Id. at 67).

Finally, ePlus contended that either through the Electronic Data Interchange (“EDI”) or the Punehout Module, Lawson’s software permitted the end user to confirm with the supplier whether or not the requested item is in inventory. Such information is either contained in the supplier’s catalog or can be requested by the end user by electronic notification. (Id. at 68).

These contentions were pressed at trial. To see, what was proved at trial, the Court relies on the verdict that the jury returned.

Here, the jury returned a mixed verdict. See Verdict Form (Docket No. 600). The jury found that Configuration 3 (which consisted of the Core S3 Procurement System, RSS and Punehout) and Configuration 5 (Core S3 Procurement System, RSS, Punehout, and EDI) infringed Claim 26 of the '693 patent. The jury found that Configuration 4 (Core S3 Procurement System with EDI) did not infringe Claim 26. For the reasons set forth above, the jury verdict stands for itself. It suffices to say, however, that ePlus proved, at trial, that Configurations 3 and 5 infringed Claim 26 of the '693 patent and did not prove that Configuration 4 did.

“More than Colorably Different ”

TiVo instructs the Court to first determine whether “the newly accused product is so different from the product previously found to infringe that it raises a fair ground of doubt as to the wrongfulness of the defendant’s conduct.” 646 F.3d at 882. In so doing, the Court is to examine “those differences between the old and new elements” and determine whether or not they are “significant.” Id. Both Lawson and ePlus place great emphasis on the word “elements” and “products” as used by the Federal Circuit in TiVo. According to Lawson, the Court must determine whether the change to the modified element is “significant.” See (Def. Colorability Br. at 17). ePlus, on the other hand, argues that the test is whether or not the modification has made the new product more than eolorably different. (PI. Reply Br. on Colorability at 6). That is, under Lawson’s view, the change must be assessed in a vacuum, looking only at the feature before and after the modification, while in ePlus’ view the modification must be assess in relation to the infringing product as a whole.

Unfortunately, TiVo uses the terms rather interchangeably. For example, TiVo instructs that, “if those differences between the old and new elements are significant, [then] the newly accused product as a whole shall be deemed more than eolorably different,” 646 F.3d at 882 (emphasis added), which would seem to support Lawson’s position. At the same time, TiVo directs that “the primary question on contempt should be whether the newly accused product is so different from the product previously found to infringe,” id. (emphasis added), and then say that it is necessary to examine the “significance of the differences between the two products,” id. (emphasis added), which would seem to support ePlus’ claim that the proper analysis focuses on the changes to the overall infringing product. TiVo also instructs that the significance of the modifications “is much dependent on the nature of the products at issue. 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 person of ordinary skill in the art at the time the modification was made.” Id. (emphasis added).

The Court concludes that the correct analysis is somewhere between the positions advanced by Lawson and ePlus. The Court must examine the changes to the elements to determine whether there has been a modification to an element that was adjudged to infringe. This determination, which will likely generally be uncontested, must take place in a relative vacuum, focusing only on the element as existed before and as modified. But, in conducting the next step of the analysis, “whether that modification is significant,” id., the Court must, as directed, focus on the “nature of the products.” Id. That is to say, TiVo instructs that the Court must assess the significance of the modification in the context of the product that was found to infringe. That makes sense, of course, because a change to an element that may seem substantial when viewed in insolation may have no bearing on the manner in which the product was found to infringe. Similarly, a modification that might, on its own, seem insignificant could be quite significant in the context of the product.

For example, Lawson made changes to RSS in order to “design around” the findings of infringement as to Claim 1 of the '172 patent and Claim 28 and 29 of the '683 patent. As a result of the Federal Circuit’s decision, which vacated the finding of infringement as to those claims, those changes were not presented, or discussed more than cursorily, at the hearing on ePlus’ contempt motion. Tellingly, however, Lawson does not rely on those changes as “elements” of the product that have been modified. Even if those modifications were, in and of themselves, “significant,” they are not significant with respect to the manner in which Lawson’s product was found to have infringed Claim 26 of the '683 patent. It is for this reason that the “colorability” analysis must be undertaken in the context of the manner in which the product itself was found to infringe.

There is no serious dispute over the nature of the changes made to RSS to produce RQC. The dispute is over whether the changes were made to “those aspects of the accused product that were previously alleged to be, and were a basis for, the prior finding of infringement” or whether they are “randomly chosen features of the product found to infringe.” TiVo, 646 F.3d at 882.

According to ePlus, the modifications made to RSS to create RQC were not related to Claim 26 of the '683 patent and, thus, the analysis need not go further. (PL Br. on Colorability at 6). In ePlus’ estimation, the changes to RSS constitute “randomly chosen features” and there the Court does not need to determine whether they are substantial in nature. In essence, ePlus contends that, because, in its view, systems with RQC continue to infringe Claim 26 in the same way as systems with RSS, the modifications cannot be related to the infringing aspects of the Configurations at issue. Lawson responds that the features that were modified to create RQC were central to the demonstrations used by ePlus’ expert at trial and were referred to positively by that expert when questioned about them. (Def. Br. on Colorability at 16-17). Indeed, Lawson argues, the “only” demonstrations that were relevant to show what ePlus “contended and proved” at trial involved the combination of items from Punchout and Item Master or from multiple Punchout sites. (Id. at 17).

Although Lawson’s argument appears simply to reiterate its view that the proper mode of analysis is for the Court to parse through the trial record and determine for itself what the jury found was proven — an argument that the Court has continually rejected — the Court nevertheless finds that, whatever significance the modifications have to the overall product, the modifications to RSS relate to the features of Lawson’s products that were contended and proven to infringe at trial. It is uncontested that interplay between RSS, Punchout, and Item Master formed at least one of the bases for a finding of infringement of Claim 26 of the '683 patent, and that recognition of the infringing nature of the interplay formed the central issue in the redesign process. Similarly, the alterations to RSS to create RQC related to the manner in which Lawson’s products infringed ePlus’ patent, at least insofar as they focused on the manner in which Lawson’s product performed steps 3 through 5 of Claim 26.

Having determined that the modifications are relevant to elements of Lawson’s products, the Court must determine “ ‘whether th[ose] modification^ are] significant.’ ” TiVo, 646 F.3d at 882. ePlus began its assessment by outlining the features of RSS that were not changed as evidence that the changes that were made were not relevant to Claim 26. See (Pl. Br. on Colorability at 8). While there is no requirement under TiVo that Lawson make many changes to many things — indeed contempt is inappropriate if there is any significant change made to any relevant feature — identification of the features of RSS that remain unchanged is helpful in assessing the significance of the modifications that were made to the infringing product. Thus, while Lawson is correct that TiVo does not ask the Court to examine the aspects of the product that are unmodified, the significance of the modification to the product can be assessed with some reference to what remained unchanged.

Here, it is undisputed that Lawson made no relevant changes to the core systems, including the Inventory Control, Requisition, and Purchase Order modules. Similarly, the only change that Lawson made to Punchout itself was the “Multiple Punchout” limitation; each Punchout session works exactly the same as before. Lawson rejected any proposed changes to the inventory checking capability of Punchout and EDI, the requisition capabilities of the modules, or the purchase order creation aspects of the modules. All that has changed is the interplay between RQC and Punchout.

Although not dispositive, evidence of how Lawson described the redesign, both internally and externally, is both pertinent and compelling. See Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1301 (Fed.Cir.2012) (finding testimonial evidence particularly compelling when the “statements come from the defendant’s chief executive regarding his own product”). Here, Lawson consistently presented the changes between RSS and RQC as insubstantial. Internally, Lawson explained that the only change in functionality between RSS and RQC was “a warning pop-up that you are about to leave the Lawson site when you punch out.” (Pl. Ex. 1030). The internal documents explained, “the process remains completely the same except if you try to punch out on a req. that is already in use with non-Punchout items, it will tell you that you need to open a separate req., and it will perform that action for you.” (Id.).

To its customers, Lawson stressed that RQC has “100% of the functionality” that they had with RSS. Lawson emphasized the similarities between RQC and RSS in order to assuage concerns over the stability of code itself. See e.g., (Pl. Ex. 1123 (“And, when you look at the differences [between RSS and RQC], most changes would have very minimal code impact and thus a limited risk”)). Stressing the simplicity of the installation process, Lawson explained that “RQC is just a new user interface to access [customers’] requisition functionality.” (Pl. Ex. 1065); see also (Pl. Ex. 1072 (“[T]he new product is a change to the user interface only.”)). Lawson’s customer support staff took the view that RQC “looks/appears exactly like RSS XML did” and that “users will probably not even notice the difference, really.” (Pl. Ex. 1124).

Indeed, Lawson concluded that the changes in RSS were so minimal that no training would be required for users of RQC. ePlus’ expert explained that the significance of this fact is that, “if RQC requires minimal or no retraining, then RQC must be very similar to RSS.” (Tr. at 166:20-22). That view is supported by Lawson’s internal communications which reflect concern from some that, if RQC were different from RSS, retraining would be required, followed by consolation from the design team that “since RQC has 100% of the existing functionality of RSS, no training issues have been identified to date.” (Pl. Ex. 1057). In essence, Lawson consistently maintained, both to its customers and its employees, that RQC is “really the same thing as RSS XML was except for a few adjustments, (however, I’m not allowed to say that.).” (PL Ex. 1027). Evidence of this ilk is compelling, particularly when those statements come from Lawson’s key staff “regarding [their] own product.” Merial Ltd., 681 F.3d at 1301.

Lawson’s principal argument as to why RQC is more than colorably different from RSS relies on Lawson’s claim that RQC altered the features that ePlus relied on in its demonstrations to prove infringement at trial. See (Def. Br. on Colorability at 16-17). Of course, even “if a redesigned product replaces a component that practiced a limitation, the redesigned component may still be held to be infringing (and therefore a basis for contempt) if the redesigned component does not amount to a significant change.” nCube, 809 F.Supp.2d at 354 n. 6. Moreover, for the reasons discussed previously, the Court rejects Lawson’s call to reexamine the trial evidence and explore the jury verdict.

Lawson’s other argument stems from its view that the RSS to RQC modifications constituted a degradation in function of the Lawson software because the modification altered the user experience. (Def. Br. on Colorability at 19). Lawson identifies two principal changes to the user experience: first, it argues that Lawson’s software is no longer “a one-stop shop for whatever a customer may want to purchase.” (Id. at 19). Second, Lawson asserts that “the changes have severely limited the circumstances under which a user has the ability to comparison shop” (id.) because the redesigned product generates more requisitions to review, and thus “increase^] the burden on those employees of Lawson’s customers who are ‘approvers.’ ” (Id. at 20).

Lawson argues, in essence, that the mere fact that the product may be less desirable makes it more than colorably different. In support of this, Lawson relies almost entirely on its view of what features were emphasized at the trial, but presented no evidence that it lost any customers on account of the asserted degradation, assuaging customer concerns by consistently emphasizing the insignificance of the modifications. At best (or worst), the modification makes the process slightly slower. Customers are subjected to a “warning pop up” and, depending on the Punchout sites used, may require multiple requisition orders to be generated. These changes, while perhaps degrading the customer experience, are not significant modifications in perspective of the infringing nature of the initial product.

In sum, the Court concludes that Lawson’s Configurations 3 and 5 with RQC are not more than colorably different than those with RSS. While the Court agrees that the changes “relate” to the features that were contended and proved to infringe, the Court concludes that, the modifications were not significant. See TiVo, 646 F.3d at 882 (“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.”). Although no one factor is dispositive, the Court notes that Lawson, both internally and externally, presented the modifications as insignificant; the time of development is indicative of (although by no means dis-positive of) an insignificant modification; and the modification did not substantially alter the manner in which Lawson’s product performed the various steps of Claim 26 of the '683. For all the foregoing reasons, the Court finds, by clear and convincing evidence, that Configurations 3 and 5 with RQC, and those configurations with RSS, “perform[] substantially the same function in substantially the same way to obtain the same result.” Union Paper-Bag Mach. Co., 97 U.S. at 125. That is, the newly accused product is not more than colorably different from the adjudged infringing product.

Infringement

Once it is determined that the products are no more than colorably different, TiVo instructs that “a finding that the newly accused product continues to infringe the relevant claims is additionally essential for a violation of an injunction against infringement.” TiVo, 646 F.3d at 883. Accordingly, it is necessary now “to evaluate the modified elements of the newly accused product against the asserted claim, on a limitation by limitation basis, to ensure that each limitation continues to be met.” M

The Court credits the testimony and demonstrations of Dr. Weaver, ePlus’ expert, as establishing the infringement component of the TiVo analysis. As Dr. Weaver demonstrated, the product configurations with RQC can still be used to perform all the steps of Claim 26; i.e., they can be used to (i) maintain at least two product catalogs; (ii) select one or more vendor catalogs in Item Master and search those catalogs; (iii) connect to external Punchout sites and search those catalogs; (iv) combine one or more selected items from one or more vendors into a single requisition; (v) generate one or more purchase orders from a single requisition; and (vi) determine the availability of a selected item. Dr. Weaver demonstrated how the configurations with RQC could perform each of the steps and how the replacement of RSS with RQC did not alter or eliminate the capability of the Lawson configurations to perform the steps of Claim 26 in the manner that the configurations with RSS did. His testimony is accepted as credible and reliable. The record, as a whole, fully corroborates Dr. Weaver’s testimony.

Lawson’s primary argument in response to Dr. Weaver’s testimony is that ePlus did not use a similar demonstration (involving infringement by purchasing a product from a single multi-vendor Punchout site) during the underlying trial. As discussed previously, the Court’s task is not to review the trial evidence. However, the Court will note that this method of infringement was specifically contended in the Infringement Charts as a manner in which Lawson’s products infringed. (Infringement Chart at 56-63). While Lawson describes this as a “newly-minted infringement theory,” ePlus plainly identified the ability of Punchout to connect to “vendor website catalogs and digital marketplaces” as a basis for its contention of infringement. (Infringement Chart at 59).

In truth, Lawson’s argument on infringement is not that the configurations cannot be used to infringe Claim 26 of the '683 patent, but that “even assuming arguendo that this Court finds that ePlus has proven by clear and convincing evidence that RQC Configurations 3 and 5 are capable of infringing claim 26, ePlus is still not entitled to a finding of contempt against Lawson.” (Def. Br. on Infringement at 11). This, says Lawson, is so because “[mjethod claims are only infringed when the claimed process is performed, not by the sale of an apparatus that is capable of infringing use,” Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1311 (Fed.Cir.2006). And, Lawson argues, ePlus has failed to demonstrate that Lawson performed, directly or indirectly, the method. (Def. Br. on Infringement at 12).

Dr. Weaver testified, and ePlus’ exhibits showed, that Lawson had installed and implemented Configurations 3 and 5 with RQC on its own systems and had trained its personnel to use those configurations in a manner that infringed ePlus’ patent. Lawson also developed training videos and “webinars,” as well as live demonstrations for customers, in which it demonstrated for its customers the use of the configurations in a manner that infringe Claim 26 of the '683 patent. In each of these situations: in the live demonstrations, in the recorded demonstrations, and in its own internal use, the evidence presented established that Lawson took all steps necessary to perform the steps of Claim 26. It is settled that, “ ‘where an alleged infringer designs a product for use in an infringing way and instructs users to use the product in an infringing way, there is sufficient evidence for a jury to find direct infringement.’ ” Toshiba Corp. v. Imation Corp., 681 F.3d 1358, 1365 (Fed.Cir.2012); see also Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301, 1318 (Fed.Cir.2009) (“As Lucent notes ‘Microsoft not only designed the accused products to practice the claimed invention, but also instructed its customers to use the accused products in an infringing way.’ ”). ePlus has proved direct infringement by RQC.

To begin, there was substantial evidence establishing that Lawson induced infringement. To show “induced infringement” ePlus “must show direct infringement, and that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another’s infringement.” i4i Ltd. v. Microsoft Corp., 598 F.3d 831, 851 (Fed.Cir.2010) (internal quotation omitted). In Toshiba, the Federal Circuit considered (and rejected) both of the arguments that Lawson makes in this case: first, that there are substantial non-infringing uses and, second, that ePlus has failed to put on direct evidence of Lawson’s customers directly infringing the ePlus’ patent.

The Federal Circuit has explained that “the existence of a substantial non-infringing use does not preclude a finding of infringement.” Toshiba, 681 F.3d at 1364 (citing Erbe Elektromedizin GmbH v. Canady Tech. LLC, 629 F.3d 1278 (Fed.Cir.2010)). In Erbe Elektromedizin, the Federal Circuit explained that while, under a contributory infringement theory, the plaintiff has to prove that a product has no substantial non-infringing uses, “no such requirement ... exists for induced infringement.” 629 F.3d at 1284.

Similarly, it is clear that the showing of “direct infringement can be proven by circumstantial evidence.” Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1326 (Fed.Cir.2009). Here, there is extensive circumstantial evidence showing that, at Lawson’s direction, Lawson’s customers are using RQC and using it a manner that infringes the patent. Indeed, it is rather facile for Lawson to suggest that the Court should find, for the purposes of one argument, that Lawson’s customers had made the switch to RQC and then, in another argument, claim that there is no evidence that its customers are not simply continuing to use RSS. Nevertheless, “a finding of infringement can rest on as little as one instance of he claimed method being performed.” Lucent, 580 F.3d at 1317. While Lawson did not keep records of how many of its customers switched over to RQC, Mr. Hansen testified that Lawson installed RQC on at least 60 customers’ systems follow its release. (Tr. at 612:6-8). Lawson designed its products “to be used in an infringing way and instructed users to use them in the infringing way.” Toshiba, 681 F.3d at 1365. The record is replete with evidence that Lawson specifically encouraged, trained, and developed demonstrations and materials to assist its customers in infringing the patent. That, coupled with the fact that Lawson installed the products on the machines of some 60 customers, is sufficient for the Court to find that Lawson induced infringement of Claim 26 of the '683 patent. Moreover, Lawson installed and used RQC itself.

For the reasons set forth above, the Court concludes, by clear and convincing evidence, that ePlus has met its burden of establishing that the Configurations 3 and 5 with RQC continue to infringe ePlus’ patent. Thus, the Court finds that Lawson is in contempt of the May 23, 2011 injunction.

Direct Violation of the Injunction

“The power of civil contempt, inherently vested in every court which exercises equity jurisdiction, makes the injunction an effective judicial remedy.” Landman v. Royster, 354 F.Supp. 1292, 1300 (E.D.Va.1973). When a court “employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers.” Nken v. Holder, 556 U.S. 418, 428, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal citations omitted). Quite apart from the analysis established by TiVo respecting a redesigned product, it is well-settled that violation of an injunction is subject to contempt proceedings. See e.g., Bessette v. W.B. Conkey Co., 194 U.S. 324, 330, 24 S.Ct. 665, 48 L.Ed. 997 (1904).

Here, the Injunction Order enjoined Lawson, “including its officers, directors, agents, servants, [and] employees” from “directly or indirectly making, using, offering to sell or selling within the United States” any of the infringing products, as well as enjoined Lawson from “circulating, publishing, or disseminating within the United States any literature or information that encourages the use, sale, or importation of’ the infringing products. Injunction Order (Docket No. 729) at 2-3. In addition, the Order provided, and the Federal Circuit affirmed, that Lawson was enjoined from “servicing and maintaining products sold before the injunction issued.” ePlus, 700 F.3d at 522; see also Injunction Order at 2. The Injunction Order provided a sunset provision for some 277 enumerated health care customers of Lawson who were to be afforded a period of time to undertake the transition to the new product and who could continue to be provided maintenance services for that period.

Following the issuance of the injunction, Lawson informed its customers that they could continue to run RSS. While Lawson kept records of how many customers had downloaded RQC, it made no effort to determine how many customers had actually installed and used RQC. Indeed, RQC was specifically designed so that, even after installation of RQC, the only thing that would need to be changed in order to allow RSS to continue to run on the customers systems were the “RSS bookmarks.” (Tr. at 548:2-6 (The Court: “[I]f I were a customer of Lawson running RSS in June of 2011, do I still have that capacity if I have RSS and RQC today? Mr. Lohkamp: ‘Tes, you have that capability to change the bookmarks.”)). In fact, the only change required in order to run RSS after the installation of RQC is to the bookmarks. (Tr. at 542:12-20). Although the RQC installation process changes the bookmarks, the customer is able to change them back, provided that he has the appropriate “administrator” access to his own computers. (Tr. at 548:10-549:25).

While the mere ability to circumvent the design around would be insufficient to support a finding of contempt, the record indicates that Lawson employees provided customers with instructions on how to run RQC and RSS in parallel. While most of the customers for which Lawson provided this information were “healthcare” customers, subject to the sunset provision of the Injunction Order, not all were. The evidence demonstrated that Lawson provided specific information to, at least, two non-healthcare Lawson customers: Western Lake Superior Sanitary and Columbia Association. See (Tr. at 588:23-25 & 582:13-16).

Further, the installation of RQC did not automatically result in the uninstallation of RSS. (Tr. at 576:3-8). To the contrary, Lawson specifically instructed its clients not to uninstall RSS before installing RQC. (Tr. at 580:11-16). While this allowed (and Lawson instructed) the healthcare customers to test-run RQC during the sunset period, Lawson’s instructions also permitted those customers to run RSS even after the sunset period expired. Lawson made no effort to determine if any of its customers who had been instructed on how to continue to run RSS ever actually switched over to RQC. Lawson made no effort to ever determine if any customer actually used RQC and had no information on which customers were running RQC and if any customer had ever downloaded Patch 1. See (Tr. at 854:7-10). However, despite being aware of the fact that users could (and did) continue to use RSS after downloading RQC, Lawson instructed its employees to provide support to customers merely upon the verification of RQC download. See (Tr. at 850:6-852:16). While Lawson purported to have instructed its employees to discontinue service once it became apparent that the customer was using RSS, it is abundantly clear that Lawson employees would (and did) service the Infringing Configurations substantially in their entirety. (Tr. at id.). Further, Lawson made no effort to identify which customers had downloaded Patch 1, so that despite Lawson’s concerns that RQC without Patch 1 would be in violation of the injunction, Lawson would provide service to customers who had never downloaded or installed Patch 1. (Tr. at 854:7-14).

Based on this record, the Court concludes that, quite apart from the TiVo contempt analysis pertaining to Lawson’s redesign effort, Lawson was in contempt of the Court’s May 23, 2011 injunction by instructing (and permitting) its employees and agents to continue to service the Infringing Configurations and by deliberately instructing its customers on how to continue to use RSS, even after the RQC product had been released.

Remedy

Measure of Compensatory Damages

Having determined that Lawson is in contempt of the May 23, 2011 injunction, it is next necessary to fashion an appropriate remedy. The “appropriate remedy for civil contempt in within the court’s broad discretion.” In re General Motors Corp., 61 F.3d 256, 259 (4th Cir.1995). Civil contempt implicates “the power of a court to grant the relief that is necessary to effect compliance with its decree. The measure of the court’s power in civil contempt proceedings is determined by the requirements of full remedial relief.” McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S.Ct. 497, 93 L.Ed. 599 (1949). Nevertheless, “the remedies and sanctions must be remedial and compensatory and, unlike criminal contempt, nonpunitive.” In re General Motors, 61 F.3d at 259. “Generally, a compensatory sanction ‘may not exceed the actual loss to the complainant caused by the actions of respondent, lest the contempt fine become punitive in nature, which is not appropriate in a civil contempt proceeding.’ ” Id. (quoting In re Tetracycline Cases, 927 F.2d 411, 413 (8th Cir.1991)). On the whole, however, the Court “has broad discretion to fashion a remedy based on the nature of the harm and the probable effect of alternative sanctions.” Colonial Williamsburg Found. v. Kittinger Co., 792 F.Supp. 1397, 1407 (E.D.Va.1992) (quoting Connolly v. J.T. Ventures, 851 F.2d 930, 933 (7th Cir.1988)). In addition, while a civil contempt fine must be nonpunitive, it “need not always be dependent on a demonstration of actual pecuniary loss.” Colonial Williamsburg Found., 792 F.Supp. at 1407.

ePlus asks the Court to order disgorgement of Lawson’s profits for the period following the entry of the injunction and continuing to the present. Specifically, ePlus asks the Court to order disgorgement of Lawson’s gross profits for that time period, which ePlus defines as “the difference between the revenue and the direct costs of providing a good or service.” (PI. Br. on Remedies at 6). In the alternative, ePlus suggests a disgorgement of incremental profits, which were estimated by both ePlus’ and Lawson’s experts. Incremental profits are, roughly speaking, calculated by determining the “gross profits” and then deducting certain expenses, for example, administrative expenses, research and development expenses, and certain sales and marketing expenses. The goal of an incremental profit calculation is identify profits that are made “if a decision is made to go ahead (or stop) some activity, but not otherwise.” Sidney Davidson et al., Managerial Accounting: An Introduction to Concepts, Methods and Uses 901 (2005). As ePlus’ expert explained, “the easiest way to think about incremental profit is, if I sell one more unit, or maybe if I get one more dollar of revenue, what’s the profitability associated with that incremental unit I’ve sold.” (Tr. at 897:25-898:3). Lawson’s expert agreed with that basic articulation of the incremental profit approach, explaining: “[A]n incremental profit means the profit that one — a firm earns from making an additional sale in the short run, given the understanding that in the short run, certain costs cannot be varied.” (Tr. at 1023:14-17). According to him, the key difference between “net” and “incremental” profits is the time frame over which they are analyzed. Essentially, incremental profit determinations must be conducted over a shorter time period because “the longer the period of time over which you measure incremental profit, the more incremental profit becomes net profit, and the reason why is because costs that are fixed in the short run become variable in the long run.” (Tr. at 1024:10-14).

Lawson opposes any remedy of disgorgement arguing, in the first instance, that it is unavailable as a matter of law and, in the alternative, that it is inappropriate under the facts of this case. Finally, Lawson argues that, even if disgorgement were available and appropriate, the proper calculation would be the “incremental profit” or “net profit” analysis and not the gross profit analysis. Of course, the parties also disagree over the calculation of the relevant profits, both gross and incremental.

As an initial matter, Lawson contends that disgorgement is “not an appropriate compensatory civil contempt remedy in the patent infringement context absent any evidence of ePlus’ actual loss.” (Def. Br. on Remedies at 2). In support of its position that disgorgement is not available, Lawson relies principally on the fact that none of the post~2Wo decisions in which a party was found in civil contempt award disgorgement as a remedy. Id. Lawson also relies on the district court decision in Walman Optical Co. v. Quest Optical, Inc., 2012 WL 3248150, at *10 (D.Minn. Aug. 9, 2012), in which the district court declined to award the contemnor’s profits as compensatory damages absent evidence that the complainant suffered losses. The court in Walman Optical recognized a split in authority “whether a contemnor’s profits may be the proper measure of compensation in a civil-contempt proceeding,” id., at *10 n. 10, but declined to address the issue as it drew a distinction between disgorgement and profits as the measure of compensatory damages.

As Lawson acknowledges, its argument that disgorgement is contrary to a previous decision in this case. See Memorandum Opinion (Docket No. 1032), 2013 WL 1287714, 946 F.Supp.2d 449 (E.D.Va. March 26, 2013). In that Memorandum Opinion, the Court considered, and rejected, Lawson’s contention that the decision of the Supreme Court of the United States in Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 52 S.Ct. 238, 76 L.Ed. 389 (1932) was no longer good law. In Leman, the Supreme Court noted that:

The Circuit Court of Appeals refused recovery of profits upon the ground that in a proceeding for civil contempt the relief should be based upon the ‘pecuniary injury or damage’ which the act of disobedience caused the complaining party, including such reasonable expenses as were incurred in the bringing of the proceeding. There is no question here that the respondent had made profits through the infringing sales in violation of the injunction, and the amount of the profits was ascertained, but the appellate court held that the petitioners were limited to the damages caused by such sales and that no damages had been shown. We think that the court erred in imposing this limitation. The fact that a proceeding for civil contempt is for the purpo