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The corresponding statutory section, 35 U.S.C. § 271(c), uses the words “material or

apparatus,”

not

“component,”

for

patented

processes.

Although

the

district

court’s

instructions differed from the statute, this is not a case where the difference mattered.

See Baker, 536 F.3d at 363-64 (reversing a jury verdict “only if the charge as a whole

creates a substantial doubt as to whether the jury has been properly guided in its

deliberations”). The parties’ infringement arguments did not turn on whether Word’s

custom XML editor was a “component,” versus a “material or apparatus.” Nor is there

any reason to think the jury was aware of the difference, or would have viewed the

difference as anything but semantics had it known, because both parties used the terms

interchangeably at trial. Under these circumstances, we are satisfied that the instruction

properly guided the jury in its deliberations.

Microsoft also argues that the district court erred by instructing the jury to focus

on the custom XML editor, rather than all of Word, when deciding whether any

noninfringing uses were “substantial.” Given the evidence presented at trial, the district

court did not abuse its discretion. As we explained in Lucent, a particular tool within a

larger software package may be the relevant “material or apparatus” when that tool is a

separate and distinct feature. 580 F.3d at 1320-21. In Lucent, the infringement inquiry

accordingly focused on the date-picker, even though that tool was included in Microsoft

Outlook, a larger software package. Id. Although the software differs, our reasoning in

Lucent applies equally here. At trial, i4i showed that some versions of Word 2003

included the custom XML editor, while others did not. Dr. Rhyne opined that this ability

to “leave [the editor] out or put it in” various Word products showed that the editor was a

separate and distinct feature. Thus, there was sufficient evidence before the jury for it

2009-1504

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