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this objectively high risk was either known or so obvious it should have been known to

Microsoft. The verdict form instructed the jury to answer “yes” or “no” to “Did i4i prove

by clear and convincing evidence that Microsoft’s infringement was willful?” The jury

answered “yes.” Based on the jury’s willfulness finding, i4i made a post-trial motion for

enhanced damages.

The district court then analyzed the factors set out in Read Corp. v. Portec, Inc.,

970 F.2d 816, 826-27 (Fed. Cir. 1992), in deciding whether to enhance damages. The

district court found that factors 2, 4, 6, 7, and 8 supported enhancement. Factors 1 and

9, combined with i4i’s delay in bringing suit, were found to weigh against enhancement.

For factor 1, which considers whether the infringer deliberately copied the ideas or

design of another, the district court found no evidence that Microsoft deliberately copied

any of i4i’s products. For factor 2, which considers whether the infringer knew of the

patent, investigated the patent’s scope and formed a good-faith belief of its invalidity or

noninfringement, the district court found Microsoft was aware of i4i’s patent, never

formed a good faith belief of noninfringement, and clearly intended to add a custom

XML editor in Word with similar capabilities to i4i’s patented products. For factor 4,

which considers the infringer’s size and financial condition, the district court found that

the jury’s award, while “substantial,” was only a small fraction of Microsoft’s profits from

the

sale

of

Word

products.

The

district

court

also

noted

that

Microsoft

was

“undisputedly” the world leader in software for business and personal computing, with

revenues of $60.42 billion in 2008 alone. As for factors 6, 7, and 8, the district court

found that Microsoft had started using the infringing products more than five years ago

(in 2002), failed to conduct an infringement analysis after being notified of the ’449

2009-1504

39

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