2. Sufficiency of the Evidence
In contrast to obviousness, Microsoft did move for pre-verdict JMOL regarding
anticipation based on S4. We nonetheless conclude that there was sufficient evidence
for a reasonable jury to find that the ’449 patent was not anticipated by the sale of S4.
See Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997). At trial, the jury heard
conflicting testimony on whether S4 met the “metacode map” limitation. In evaluating
the evidence, the jury was free to disbelieve Microsoft’s expert, who relied on the S4
user manual, and credit i4i’s expert, who opined that it was impossible to know whether
the claim limitation was met without looking at S4’s source code. Although the absence
of the source code is not Microsoft’s fault, the burden was still on Microsoft to show by
clear and convincing evidence that S4 embodied all of the claim limitations. The jury’s
finding of validity was supported by the testimony of the inventors (Vulpe and Owens),
as well as their faxes to an attorney regarding the patent application.
3. Jury Instructions
Microsoft also challenges the jury instructions on its burden of proving
anticipation. According to Microsoft, the burden of proof should have been less for prior
art that was not before the PTO, as was the case for Rita and DeRose.
We conclude that the jury instructions were correct in light of this court’s
precedent, which requires the challenger to prove invalidity by clear and convincing
evidence. See, e.g., Zenith Elecs. Corp. v. PDI Commc’n Sys., Inc., 522 F.3d 1348,
Gateway, Inc., 580 F.3d 1301, 1311-16 (Fed. Cir. 2009), and Technology Licensing
Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008), make clear that the