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i4i disputed that it would have been obvious to combine Kugimiya with Rita or

DeRose.

i4i

presented

evidence

that

Kugimiya

was

in

a

different

field

(language

translation) than Rita, DeRose, or the ’449 patent, which address document editing. i4i

also presented evidence of secondary considerations, including long-felt need, failure of

others, and commercial success. As to anticipation, i4i also argued that S4 did not

practice the ’449 patent because it did not create a “metacode map.”

Before the case was submitted to the jury, Microsoft moved for JMOL on

invalidity, arguing that i4i’s sale of S4 violated the on-sale bar under § 102(b). Microsoft

did not move for pre-verdict JMOL on obviousness or with regard to other prior art. The

verdict form did not require the jury to make separate findings for the different pieces of

prior

art.

Instead,

the

form

asked:

“Did

Microsoft

prove

by

clear

and

convincing

evidence that any of the listed claims of the ’449 patent are invalid?” The jury was

instructed to answer “yes” if it found a particular claim invalid, but otherwise answer

“no.” The jury found all the asserted claims not invalid.

A. Obviousness

On appeal we must decide whether the ’449 patent would have been obvious in

light of some combination of Rita or DeRose with Kugimiya.

The Rita prior art is a software program that allows users to create and edit

documents using SGML, a markup language like XML. Rita stores the SGML tags and

document’s content in a “tree structure.” This tree stores the tags and content together.

DeRose discloses a system for generating, analyzing, and navigating electronic

documents

containing

a

markup

language,

such

as

XML

or

SGML.

To

assist

navigation, DeRose and Rita use “pointers,” which allow the user to move between

2009-1504

13

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