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
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.