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As to the limited question of the injunction’s effective date, we conclude that it is not.

Accordingly, the injunction’s effective date is modified as described below.

The district court ordered the injunction to go into effect sixty days after August

11,

2009,

the

date

of

its

order

issuing

the

injunction.

Citing

the

declaration

of

a

Microsoft employee (the “Tostevin declaration”), the district court found that “Microsoft

ha[d] presented evidence that it may take five months to implement any injunction.” The

district court also found, without any citation to the record, that “i4i ha[d] presented

evidence that it is possible to design a software patch that can remove a user’s ability to

operate the infringing functionality.” Based on, among other things, “this competing

evidence” and “the uncertainty surrounding what period of time would be ‘reasonable’ to

expect Microsoft to comply with any injunction,” the district court ordered Microsoft to

comply with the permanent injunction “within 60 days.”

In light of the record evidence, we conclude that the district court erred by

ordering Microsoft to comply with the injunction within sixty days. The only evidence

about how long it would take Microsoft to comply with the injunction was the Tostevin

declaration, which gave an estimate of “at least” five months. The district court cited no

other evidence, and our review of the record reveals no “competing evidence.”

Accordingly, we modify the injunction’s effective date from “60 days from the date of this

order” to “5 months from the date of this order.” Cf. Canadian Lumber Trade Alliance v.

United States, 517 F.3d 1319, 1339 n.22 & 1344 (Fed. Cir. 2008) (modifying an

injunction’s terms on appeal); Forest Labs., Inc. v. Ivax Pharms., Inc., 501 F.3d 1263,

1271-72 (Fed. Cir. 2007) (modifying an injunction’s terms on appeal). The injunction’s

effective date is now January 11, 2010.

2009-1504

47

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