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C. Balance of Hardships

Except on the limited issue of timing, the balance of hardships favors i4i. The

district court found that i4i’s business is comprised “almost exclusively” of products

based on the ’449 patent. In contrast, Microsoft’s infringing custom XML editor was

found to be “merely one of thousands of features” within Word, used by only a small

fraction

of

Microsoft’s

customers.

The

district

court

further

found

that

Microsoft’s

infringement of the ’449 patent allowed Microsoft to “corner[] the XML market.”

Because the “balance of hardships” assesses the relative effect of granting or

denying an injunction on the parties, the district court properly considered several

factors in its analysis. eBay, 547 U.S. at 391. These factors included the parties’ sizes,

products, and revenue sources. When measured by these factors, it is clear that the

patented technology is central to i4i’s business. Because most of i4i’s products are

based on the ’449 patent, i4i’s market share, revenues, and business strategy are

similarly tied to the patented method. These same factors reveal that the infringing

custom XML editor relates to only a small fraction of Microsoft’s sizeable business. The

far greater importance of the patented method to i4i, combined with the demonstrated

past effects of infringement on i4i, favors issuance of a permanent injunction.

The district court’s analysis properly ignored the expenses Microsoft incurred in

creating the infringing products. See Acumed, 551 F.3d at 1330. Similarly irrelevant

are the consequences to Microsoft of its infringement, such as the cost of redesigning

the infringing products. Id. As we explained in Broadcom, neither commercial success,

nor sunk development costs, shield an infringer from injunctive relief. 543 F.3d at 704.

Microsoft is not entitled to continue infringing simply because it successfully exploited its

2009-1504

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