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credibility of S4’s creators, Vulpe and Owens, who are also the named inventors on the

’449 patent. Both testified that the S4 software sold to SEMI did not practice the ’449

patent, for which they claimed the key innovation—the metacode map—was not even

conceived until after the critical date. Both were extensively cross-examined. Vulpe

was impeached with statements from a letter he had written to investors, as well as a

funding application submitted to the Canadian government.

On appeal, Microsoft argues that it was entitled to JMOL because it established a

prima facie case of anticipation, which i4i could not rebut by relying on the inventors’

testimony alone, absent corroboration. Alternatively, Microsoft contends the evidence

was not sufficient to support the jury’s verdict of validity.

1. Burden of Proof

Microsoft’s contention regarding a prima facie case and i4i’s “rebuttal”

misunderstands the nature of an anticipation claim under 35 U.S.C. § 102(b).

Anticipation is an affirmative defense. See, e.g., Electro Med. Sys., S.A. v. Cooper Life

Scis., Inc., 34 F.3d 1048, 1052 (Fed. Cir. 1994). We do not agree that i4i was required

to come forward with corroboration to “rebut” Microsoft’s prima facie case of

anticipation.

Corroboration

is

required

in

certain

circumstances.

See,

e.g.,

Martek

Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1374-76 (Fed. Cir. 2009)

(“Because Lonza sought to introduce the testimony of an alleged prior inventor under

§ 102(g) for the purpose of invalidating a patent, Lonza was required to produce

evidence corroborating Dr. Long's testimony.”); Procter & Gamble Co. v. Teva Pharms.

USA, Inc., 566 F.3d 989, 989-99 (Fed. Cir. 2009) (requiring corroboration where

patentee tried to prove that the conception date was earlier than the filing date of a

2009-1504

17

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