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However, Lord Hardwicke drew a distinction between works "fairly made" and those "colourably shortened".
"To speak of Portuguese colonies in East Africa is to speak of a mere fiction-a fiction colourably sustained by a few scattered seaboard settlements, beyond whose narrow littoral and local limits colonisation and government have no existence."
EchoStar argued that its redesign of the infringing products was more than colorably different by the KSM test.
The U.S. District Court, in February 2009, issued an order noting that the "patch" is colorably different, effectively concluding the case.
