conclusion that Microsoft’s conduct satisfied Seagate’s subjective prong is insup- portable,” and set forth five different reasons why “[a]n objective observer . . . would not have found a high likelihood that the ’449 Patent was valid and in- fringed by Word’s custom XML functionality.” Blue Br. 69. And in response, i4i argued that “substantial evidence supported the jury’s verdict of willful infringe- ment.” Red Br. 72; see also id. at 72-75; Gray Br. 36-37.
There is no basis for the conclusion that Microsoft did not challenge the willfulness finding on which the court’s $40 million enhancement of damages was predicated. The panel should grant rehearing and provide Microsoft with the ap- pellate review to which it is entitled under 28 U.S.C. § 1295. Once that review is exercised, the decision itself indicates that Microsoft presented at least a relatively “close question” of claim construction, slip op. 10, which should itself be suffi- cient to defeat objective willfulness under Seagate. See Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1373 (Fed. Cir. 2008).
CONCLUSION The petition for panel rehearing or rehearing en banc should be granted.
January 8, 2010
______________________________ Thomas G. Hungar GIBSON, DUNN & CRUTCHER LLP Attorney for Microsoft Corporation