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district court’s issuance of a permanent injunction and otherwise affirm the injunction’s

scope. Below, we address each factor in turn.

A. Irreparable Injury

The district court concluded that i4i was irreparably injured by Microsoft’s

infringement, based on its factual findings that Microsoft and i4i were direct competitors

in the custom XML market, and that i4i lost market share as a result of the infringing

Word

products.

The

district

court

further

found

that

the

infringing

Word

products

rendered i4i’s software obsolete, as a result of which i4i changed its business model to

make software that complemented Microsoft’s infringing products.

It was proper for the district court to consider evidence of past harm to i4i. Past

harm to a patentee’s market share, revenues, and brand recognition is relevant for

determining

whether

the

patentee

“has

suffered

an

irreparable

injury.”

Id.

at

391

(emphasis added); see, e.g., Acumed, 551 F.3d at 1328-29 (considering the relevance

of past licensing decisions in assessing irreparable injury); Voda v. Cordis Corp., 536

F.3d 1311, 1329 (Fed. Cir. 2008) (concluding that the patentee “had not identified any

irreparable injury to himself”); Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1379-

80 (Fed. Cir. 2008) (analyzing whether the patentee “had been irreparably harmed”).

Although injunctions are tools for prospective relief designed to alleviate future harm, by

its terms the first eBay factor looks, in part, at what has already occurred. Considering

past harm to a patentee does not establish a “general rule” or rely on the sort of “broad

classifications” rejected by the Supreme Court in eBay; not all patentees will be able to

show injury, and even those who do must still satisfy the other three factors. Cf. eBay,

547 U.S. at 393-94.

2009-1504

43

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