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Attorneys for Microsoft Corporation - page 22 / 74





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showing of distant past harm. Indeed, the decision agreed with Microsoft that i4i could not prove future harm since its software now “complement[s]” (rather than competes) with Microsoft’s products, yet misconstrued the irreparable injury re- quirement as met by evidence of “past harm.” Slip op. 43. The decision squarely conflicts with numerous decisions of the Supreme Court and the regional circuits holding that even where a plaintiff has suffered past harm, the “irreparable injury [] requirement [] cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again” in the future. Lyons, 461 U.S. at 111 (emphasis added); see also, e.g., Abraham v. Nagle, 116 F.3d 11, 15-16 (1st Cir. 1997); Midgett v. Tri-County Metro. Transp. Dist., 254 F.3d 846, 850-51 (9th Cir. 2001); Wooden v. Bd. of Regents, 247 F.3d 1262, 1284-86 (11th Cir. 2001).

En banc review is thus warranted to reconcile the jurisprudence of this Court with well-settled Supreme Court and regional circuit precedent. And, because i4i’s failure to show “future injury requires a finding that this prerequisite of equitable relief has not been fulfilled” (Lyons, 461 U.S. at 111), correction of the decision’s erroneous legal standard requires vacatur of the injunction.


The Panel Should Grant Rehearing On Microsoft’s Challenge To The Legal Sufficiency Of The Jury’s Finding Of Willfulness

The decision states that Microsoft “does not challenge . . . the sufficiency of the evidence supporting the jury’s willfulness finding” that undergirded the district court’s award of $40 million in enhanced damages. Slip op. 38. That statement is plainly incorrect: Microsoft’s opening brief argued it “was entitled to judgment as a matter of law on the issue of willfulness,” in accord with its motion to that effect in the district court. Blue Br. 68. Microsoft both argued that “the district court’s


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