Trustees of Columbia University v. Gen Digital Inc.

Case: 24-1243 Document: 132 Page: 1 Filed: 03/11/2026

United States Court of Appeals for the Federal Circuit ______________________ THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Plaintiff-Appellee v. GEN DIGITAL INC., FKA SYMANTEC CORPORATION, FKA NORTONLIFELOCK, INC., Defendant-Appellant ______________________ 2024-1243 ______________________ Appeals from the United States District Court for the Eastern District of Virginia in No. 3:13-cv-00808-MHL, Chief Judge M. Hannah Lauck. ______________________ Decided: March 11, 2026 ______________________ DUSTIN GUZIOR, Sullivan & Cromwell LLP, New York, NY, argued for plaintiff-appellee. Also represented by GARRARD R. BEENEY, STEPHEN J. ELLIOTT, ALEXANDER N.

GROSS; OLIVER ENGEBRETSON-SCHOOLEY, MORGAN L.

RATNER, JEFFREY B. WALL, Washington, DC.

DOUGLAS ETHAN LUMISH, Weil, Gotshal & Manges LLP, Redwood Shores, CA, argued for defendant-appellant. Also represented by GABRIEL K. BELL, ASHLEY N. FINGER, MICHAEL A. MORIN, BRENT MURPHY, MELISSA ARBUS Case: 24-1243 Document: 132 Page: 2 Filed: 03/11/2026

2 TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC.

SHERRY, MARGARET UPSHAW, Latham & Watkins LLP, Washington, DC; DAVID K. CALLAHAN, Chicago, IL; NICOLAS LUONGO, New York, NY. ______________________ Before DYK, PROST, and REYNA, Circuit Judges.

DYK, Circuit Judge.

The Trustees of Columbia University in the City of New York (“Columbia”) brought suit against Gen Digital Inc., which markets the Norton software brand, (“Norton”) asserting infringement of several claims of United States Patent Nos. 8,601,322 (the “’322 patent”) and 8,074,115 (the “’115 patent”) related primarily to protecting computer systems from viruses and other malicious activity. Colum- bia also sought correction of inventorship of United States Patent No. 8,549,643 (the “’643 patent”).

Norton filed a motion for judgment on the pleadings with respect to the ’322 and ’115 patent claims, arguing the asserted claims were ineligible under 35 U.S.C. § 101. The district court denied the motion, concluding that under step one of the framework set forth in Alice Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014), the claims were not di- rected to an abstract idea. Before trial, the district court struck the § 101 defense. After trial, the jury returned a verdict of willful infringement on four claims: claims 2, 11, and 27 of the ’322 patent and claim 2 of the ’115 patent (to- gether, the “asserted claims”) and awarded $185,112,727 in damages. The damages figure included damages based on Norton’s sales to customers outside the United States.

The district court denied judgment as a matter of law (“JMOL”) on the issues of infringement, willfulness, and damages as to the foreign sales. Based on the jury verdict, the district court awarded enhanced damages and attor- neys’ fees, in part because of a negative inference imposed based on a contempt finding against Quinn Emanuel Ur- quhart & Sullivan, LLP (“Quinn”), Norton’s counsel.

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We vacate the judgment. We conclude that the as- serted claims are abstract at step one of the Alice analysis and that further proceedings on remand are required as to step two. Because other issues may arise on the remand, we address those issues, which the district court need take up only if the patent claims are determined to be eligible.

We see no error in the district court’s claim construction or its denial of JMOL with regard to the issues of infringe- ment and willfulness. However, we conclude the district court erred in its denial of JMOL as to damages resulting from foreign sales. In the companion case we also decide today, No. 2024-1244, we reverse the contempt order against Quinn. This would require vacating the award of enhanced damages and attorneys’ fees in this case since those awards relied in part on the contempt finding. Other considerations also would require reconsideration of the enhancement.

BACKGROUND I. THE ASSERTED PATENTS The ’322 patent and ’115 patent are directed towards “[m]ethods, media, and systems for detecting anomalous program executions.” ’322 patent, col. 3 ll. 7–8. 1 The claims disclose a process by which an “emulator” executes a portion of a program and compares how the emulated pro- gram performs with a “model of function calls” reflecting how the program is typically expected to perform. A func- tion call reflects the next action a program is requesting to take and contains data setting the parameters of the re- quest, so a model of function calls models the future behav- ior of a program. Comparing a function call made in the

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Independent claim 2 of the ’322 patent is illustrative.

The claim recites: A method for detecting anomalous program ex- ecutions, comprising: executing at least a portion of a pro- gram in an emulator; comparing a function call made in the emulator to a model of function calls for the at least a portion of the program, wherein the model is a combined model created from at least two models cre- ated using different computers; and identifying the function call as anoma- lous based on the comparison. ’322 patent, claim 2. The other asserted claims include a claim to a system with a processor that performs the claimed process (’322 patent, claim 27) and a claim to a computer-readable medium containing instructions to per- form the claimed process (’322 patent, claim 11). Claim 2 of the ’115 patent recites a method that includes a further step of “notifying an application community . . . of the anomalous function call.” ’115 patent, claim 2 (depending from unasserted claim 1).

II. PROCEDURAL HISTORY Several of Norton’s antivirus software products employ a feature called SONAR/BASH. Norton sells its products both in the United States and internationally. Its interna- tional sales make use of a “content delivery network” whereby the software is transmitted electronically from do- mestic servers to other servers—including many located abroad. J.A. 211. Customers then download the software via an electronic transmission from a nearby server.

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Columbia brought suit against Norton in the United States District Court for the Eastern District of Virginia, asserting that SONAR/BASH infringes the asserted claims. In addition to patent infringement claims, Colum- bia brought claims for correcting inventorship of the ’643 patent owned by Norton. These latter claims were re- solved in Columbia’s favor and are not relevant to this ap- peal. However, they are relevant to the companion case.

Following a Markman hearing, the district court con- strued the contested terms of the ’322 and ’115 patent claims. The district court adopted Columbia’s proposed construction of the claim term “emulator” as “[s]oftware, alone or in combination with hardware, that permits the monitoring and selective execution of certain parts, or all, of a program.” J.A. 2. 2 The district court rejected Norton’s preferred construction, “[s]oftware, alone or in combination with hardware, that simulates a computer system.”

J.A. 2787. The relevant difference between the two is whether simulation is a required element. The parties then entered a stipulated judgment of noninfringement as to the ’322 and ’115 patents based on the district court’s construction of a different term, “anomalous.” On appeal, we reversed the claim construction of “anomalous,” vacated the stipulated judgment as to the ’322 and ’115 patents and remanded for further proceedings. Trs. of Columbia Univ. v. Symantec Corp., 811 F.3d 1359, 1370–71 (Fed. Cir. 2016). Meanwhile in a separate proceeding, the Patent Trial and Appeal Board determined that various claims in the ’322 and ’115 patents (previously asserted in this case) were invalid as obvious, and we affirmed. Trs. of Columbia Univ. v. Symantec Corp., 714 F. App’x 1021, 1022 (Fed. Cir. 2018) (Rule 36 affirmance).

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After our remand, Norton moved for judgment on the pleadings that the remaining asserted claims were patent ineligible under 35 U.S.C. § 101. For the purposes of the § 101 analysis, Columbia represented to the district court that there were no relevant differences between ’322 pa- tent claim 2 and the other asserted claims of the ’322 pa- tent. At Alice step one, the district court denied the motion, finding that the asserted claims of both the ’322 and ’115 patents were not directed to an unpatentable abstract idea, but to “improving computer virus scanning” through “the creation of unique models,” and “improvements in ef- ficiency.” J.A. 18. The district court did not reach step two of the Alice analysis.

At trial, Columbia’s expert witness, Michael Bailey, testified that SONAR/BASH is software that, in combina- tion with a computer, functions as the claimed emulator because it permitted the monitoring and selective execu- tion of programs. However, Dr. Bailey conceded that SONAR/BASH “is not capable of simulating software,” so it would not be infringing under Norton’s rejected construc- tion. J.A. 52932. The jury returned a verdict finding literal infringement of all asserted claims including induced and contributory infringement of claims 2, 11, and 27 of the ’322 patent. 3 The jury also found the infringement was willful and awarded a reasonable royalty of $185,112,727.

The reasonable royalty included a royalty for Norton’s sales to customers located outside the United States of $94,037,265 based on findings that the infringing product sold to foreign customers was made in the United States and distributed from the United States.

After trial, Norton renewed its motion for JMOL, argu- ing that there was insufficient evidence of infringement and that damages for the foreign sales were not

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TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 7 recoverable. The district court denied the motion. Then, Columbia moved for enhanced damages under 35 U.S.C. § 284 and attorneys’ fees under § 285. The district court granted the motions for enhanced damages and attorneys’ fees, increasing the damages by a factor of 2.6. In doing so, the district court relied in part on a finding that Quinn was in civil contempt for failing to produce communications al- leged to be privileged, as discussed in the companion case.

Norton appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

DISCUSSION I. ELIGIBILITY UNDER § 101 As an initial matter, we conclude that the district court erred in determining that the asserted claims were not ab- stract at step one of the Alice inquiry. We therefore vacate the district court’s denial of Norton’s motion for judgment on the pleadings and remand for the district court to con- sider step two of Alice in the first instance. 4

4 Columbia argues, citing a case where we held that a decision denying summary judgment on an issue that eventually went to trial was not appealable, that the order denying Norton’s motion for judgment on the pleadings was not appealable. Appellee’s Br. 42–43 (citing Ecofactor, Inc. v. Google LLC, 104 F.4th 243, 249–50 (Fed. Cir. 2024), vacated 115 F.4th 1380 (Fed. Cir. 2024), reinstated in rele- vant part 137 F.4th 1333, 1347 (Fed. Cir. 2025) (en banc)).

This is not an appeal from a denial of summary judgment, and in any event the issue was not litigated at trial nor submitted to the jury because the district court struck the issue sua sponte; this argument is meritless. See Free Stream Media Corp. v. Alphonso Inc., 996 F.3d 1355, 1367 Case: 24-1243 Document: 132 Page: 8 Filed: 03/11/2026

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An invention is patent eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. “But there are exceptions.” Free Stream, 996 F.3d at 1361. The Supreme Court has inter- preted this language to exclude “[l]aws of nature, natural phenomena, and abstract ideas” from patent eligibility. Al- ice, 573 U.S. at 216.

Patent eligibility involves a two-step inquiry. Id. at 217–18; Recentive Analytics, Inc. v. Fox Corp., 134 F.4th 1205, 1211 (Fed. Cir. 2025), cert. denied — S. Ct. —, No. 25-505, 2025 WL 3507020. “First, we determine whether the claims at issue are directed to one of those pa- tent-ineligible concepts.” Alice, 573 U.S. at 217. If the claims are found to be directed to an abstract idea, we pro- ceed to step two, where we assess the elements of each claim both individually and as an ordered combination to determine whether they possess an “inventive concept” that ensures that the patent amounts to more than a pa- tent upon the abstract idea itself. Id. at 217–18.

A. ALICE STEP ONE To determine whether a claim is “directed to” a patent ineligible concept, we evaluate “the focus of the claimed ad- vance over the prior art to determine if the claim’s charac- ter as a whole is directed to excluded subject matter.”

Trinity Info Media, LLC v. Covalent, Inc., 72 F.4th 1355, 1361 (Fed. Cir. 2023) (quoting PersonalWeb Techs. LLC v. Google LLC, 8 F.4th 1310, 1315 (Fed. Cir. 2021)). This requires “an accurate characterization of what the claims require and of what the patent asserts to be the claimed advance.” TecSec, Inc. v. Adobe Inc., 978 F.3d 1278, 1294 (Fed. Cir. 2020). Although the specification is relevant to the construction of the claims, “reliance on the specification

(Fed. Cir. 2021) (reversing denial of motion to dismiss based on § 101).

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TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 9 must always yield to the claim language in identifying that focus.” Trinity, 72 F.4th at 1361 (quoting ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 766 (Fed. Cir. 2019)); see also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1152 (Fed. Cir. 2016) (“Our analysis fo- cuses, as it must, on the Asserted Claims.”); Trading Techs.

Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1095 (Fed. Cir. 2019) (“Eligibility depends on what is claimed, not all that is dis- closed in the specification.”); AI Visualize, Inc. v. Nuance Commc’ns, Inc., 97 F.4th 1371, 1378 (Fed. Cir. 2024) (“[W]e consider the claims in light of the specification but avoid importing concepts from the specification into the claims.”).

In the software context, Alice step one “often turns on whether the claims focus on ‘the specific asserted improve- ment in computer capabilities’” rather than “an ‘abstract idea’ for which computers are invoked merely as a tool.”

Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018) (quoting Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016)). For example, a claim may be eligible at step one if it “overcom[es] a prob- lem specifically arising in the realm of computer networks.”

Uniloc USA, Inc. v. LG Elecs. USA, Inc., 957 F.3d 1303, 1307 (Fed. Cir. 2020) (quoting DDR Holdings, LLC v. Ho- tels.com, L.P., 773 F.3d 1245, 1257–58 (Fed. Cir. 2014)).

Such software-based innovations have been found to be pa- tent eligible where they make “non-abstract improvements to computer technology.” Finjan, 879 F.3d at 1304 (quot- ing Enfish, 822 F.3d at 1335–36).

However, claims that recite something “already routine and conventional” are not sufficient. See GoTV Streaming v. Netflix, Inc., 166 F.4th 1053, 1065 (Fed. Cir. 2026). That is, the use of “conventional or generic technology” cannot alone constitute a technological improvement. See In re TLI Commc’ns LLC Pat. Litig., 823 F.3d 607, 612 (Fed. Cir. 2016); Intell. Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1314 & n.5 (Fed. Cir. 2016) (noting that well-known and fundamental practices are abstract ideas); accord Case: 24-1243 Document: 132 Page: 10 Filed: 03/11/2026

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GoTV, 166 F.4th at 1065. “[T]he claim itself ‘must identify “how” that functional result is achieved by limiting the claim scope to structures specified at some level of con- creteness, in the case of a product claim, or to concrete ac- tion, in the case of a method claim.’” Free Stream, 996 F.3d at 1363 (quoting Am. Axle & Mfg., Inc. v. Neapco Holdings, LLC, 967 F.3d 1285, 1302 (Fed. Cir. 2020)). Claims that “do not delineate steps through which the [relevant] tech- nology achieves an improvement” are insufficient for pa- tent eligibility. See Recentive, 134 F.4th at 1213 (citing Int’l Bus. Machs. Corp. v. Zillow Grp., Inc., 50 F.4th 1371, 1381 (Fed. Cir. 2022)).

In the computer context, “[b]y itself, virus screening is well-known and constitutes an abstract idea.” Intell. Ven- tures, 838 F.3d at 1319. Therefore, a claim that “does not claim a new method of virus screening or improvements thereto” and does not “improve or change the way a com- puter functions” is directed to an abstract idea. Id. at 1319–20.

In its motion for judgment on the pleadings, Norton ar- gued that the asserted claims were drawn to the abstract idea of “identifying a deviation in data based on a compar- ison” in connection with virus scanning. J.A. 7820. In re- sponse, Columbia argued that the claims “recite specific steps and a technique for improving computer security that departs from earlier approaches.” Mem. in Opp. at 16, Trs. of Columbia Univ. v. Symantec Corp., No. 3:13-cv-808 (E.D. Va. Aug. 5, 2019), Dkt. No. 264.

Relying primarily on the patents’ shared specification, the district court held that the asserted claims “improve computer functionality by improving computer virus scan- ning” by “(1) the creation of unique models and (2) improve- ments in efficiency,” J.A. 18, and therefore are patent eligible. The only claim language relied on by the district court was the limitation requiring that “the model is a com- bined model created from at least two models created using Case: 24-1243 Document: 132 Page: 11 Filed: 03/11/2026

TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 11 different computers.” J.A. 20 (quoting ’322 patent, claim 2). On appeal, Columbia supports the district court’s rationale, namely that the claims are not abstract because of the use of multiple computers. Columbia argues that the use of a model that is created using different computers is more efficient and allows a computer to be more resistant to viruses because viruses are detected more quickly.

As the specification describes, by dividing the task of creating a model between different computers, a complete model can be created much more quickly than one com- puter working on its own. If “models are shared among many members of a community running the same applica- tion (referred to as an ‘application community’),” then “some embodiments can share models with each other and/or update each other’s models such that the learning of anomaly detection models is relatively quick.” ’322 pa- tent, col. 6 ll. 37–42. This approach can provide an effi- ciency gain: “For example, instead of running a particular application for days at a single site . . . thousands of repli- cated applications can be run for a short period of time . . . and the models created based on the distributed data can be shared.” Id. col. 6 ll. 42–47; accord id. col. 9 ll. 14–21.

Under this divide-and-conquer method, “[w]hile only a por- tion of each application instance may be monitored [by a single computer] . . . the entire software body can be moni- tored across the entire community” of devices monitoring the program. Id. col. 6 ll. 47–49.

Columbia concedes that emulators were conventional technology and that a divide-and-conquer approach where multiple computers collaborate on a single task is an ab- stract idea. Cf. Finjan, 879 F.3d at 1304 (quoting Intell.

Ventures, 838 F.3d at 1321) (recognizing mere use of a sec- ond computer in virus scanning does not render a claim non-abstract). The claimed invention’s efficiency gain from the use of multiple computers is no more than this conced- edly abstract idea.

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Columbia nonetheless argues that the asserted claims recite various other technological improvements not relied on by the district court that render the claims directed to something non-abstract. The problem is these supposed improvements are not what the claims are directed to, i.e., the supposed improvements are not required by the lan- guage of the asserted claims at all.

First, although Columbia conceded at oral argument that the use of emulators was conventional, it argued that selective emulation was not. Selective emulation refers to emulating only part of a program rather than the full pro- gram to reduce the burden of emulation on the computer.

Columbia argues that the emulator’s capacity to selectively emulate was at the heart of the technological improvement disclosed in the asserted patents. This argument was not raised before the district court and is therefore forfeited.

See Nuvo Pharms. (Ir.) Designated Activity Co. v. Dr. Reddy’s Lab’ys Inc., 923 F.3d 1368, 1378 (Fed. Cir. 2019).

Even if this argument were not forfeited, it is without merit. Columbia’s reading of the patent is not supported by the plain language of the claims. The language of ’322 patent claim 2 (“executing at least a portion of a pro- gram in an emulator”) suggests that selectivity is not re- quired, and that the entire program may be emulated. The specification consistently describes selective emulation as optional. E.g., ’322 patent, col. 9 ll. 41–43, col. 13 ll. 1–3.

In other words, the claims are satisfied even when there is no selective emulation. We do not read the district court’s construction as requiring selective emulation, given the reference to “permit[ting]” emulation of the entire pro- gram. J.A. 2.

It cannot be said that the claims are directed to a tech- nological improvement when nothing in the claims re- quires the steps necessary to make the improvement.

GoTV, 166 F.4th at 1061 (“[O]nly features that are claimed, not unclaimed details that appear in the specifi- cation, can supply something beyond . . . an abstract idea Case: 24-1243 Document: 132 Page: 13 Filed: 03/11/2026

TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 13 and sufficient to render the claim eligible . . . .”); Uniloc, 957 F.3d at 130 (discussing Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014)); Free Stream, 996 F.3d at 1364 (claims abstract where “as- serted claims do not incorporate any such methods” of achieving the technological improvement described in the specification). Because the claims do not require selective emulation, selective emulation cannot prevent the claims from constituting an abstract idea.

Second, Columbia points to language in the specifica- tion, arguing that the specification describes how the claims capture a non-abstract technological improvement involving the creation of non-standard models. The speci- fication provides that “[m]odel sharing can result in one standard model that an attacker could potentially access and use to craft a mimicry attack.” ’322 patent, col. 6 ll. 54–56. A system that builds a single standardized model is easier to infiltrate because a virus only has to mimic that single model to be undetected throughout the entire sys- tem. The specification goes on to describe improvements that can be made to solve this problem, such as creating a set of “unique and diversified models.” Id. col. 6 ll. 56–57.

These diversified models are not merely created by combin- ing models from different computers, but by “randomly choosing particular features from the application execution that is modeled.” Id. col. 6 ll. 57–60. These requirements again are not reflected in the relevant claim language.

Third, Columbia argues that the claims are not ab- stract because they use the claimed application community members to create a model, citing a portion of the specifi- cation that states that “distributed sensors whose data is correlated among many (e.g., a thousand) application com- munity members can be used to compute a substantially accurate [combined model] in a relatively short amount of time.” ’322 patent, col. 7 ll. 58–62. Even if this feature were distinct from the concededly abstract divide-and-con- quer approach discussed above, it is not reflected in the Case: 24-1243 Document: 132 Page: 14 Filed: 03/11/2026

At oral argument, Columbia sought to support the dis- trict court’s step one decision based on a ground that was not relied on by the district court: the requirement in the claims of the use of function calls in creating the model. We find this argument forfeited because Columbia failed to de- velop the issue properly in its brief, though as will be seen, the same issue arises again at step two. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (collecting cases); see also Kao Corp. v. Unilever U.S., Inc., 441 F.3d 963, 973 n.4 (Fed. Cir. 2006) (arguments alluded to in the “Statement of the Facts” and not developed in the argument section of a brief are forfeited).

Finally, Columbia argues that our decision in Finjan, Inc. v. Blue Coat Systems, Inc., counsels us to find the as- serted claims non-abstract. We disagree. In Finjan, we found a patent claim directed to a technological improve- ment in the virus-scanning context where it claimed a “se- curity profile that identifies suspicious code in [a] received Downloadable.” 879 F.3d at 1304. This novel file type rep- resented an improvement in computer functionality be- cause traditional code detection models relied on “code- matching” virus scans that merely compared the analyzed code with code listed in a database of viruses, whereas the claimed file type required the use of an improved “behavior- based” virus scan that analyzed the operations that may be Case: 24-1243 Document: 132 Page: 15 Filed: 03/11/2026

TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 15 attempted by the Downloadable and that “link[ed]” the re- sults of the scan to the Downloadable so that downloading computers could review them. Id. at 1304–05. The im- provements found to be non-abstract in Finjan bear no re- semblance to the purportedly non-abstract claims in this case.

We therefore find that the asserted claims are directed towards the abstract idea of comparing data against a model (created using different computers) to determine if it is anomalous and proceed to step two of Alice.

B. ALICE STEP TWO At Alice step two, we consider the elements of the claim both individually and “as an ordered combination” to deter- mine whether the additional elements “transform the na- ture of the claim” into a patent-eligible application. Alice, U.S. at 217 (quoting Mayo Collaborative Servs. v. Pro- metheus Lab’ys, Inc., 566 U.S. 66, 78–79 (2012)); Recentive, 134 F.4th at 1214. This requires identifying “an inventive concept sufficient to transform the claimed abstract idea into a patent-eligible application.” Recentive, 134 F.4th at 1215 (quoting Trinity, 72 F.4th at 1365). “An inventive concept . . . must be significantly more than the abstract idea itself.” BASCOM Glob. Internet Servs. v. AT&T Mo- bility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016). So too, “[s]imply appending conventional steps, specified at a high level of generality,” which are “well known in the art” and consist of “well-understood, routine, conventional ac- tivit[ies]” previously engaged in by workers in the field, is not sufficient to supply the inventive concept. Alice, U.S. at 221–22, 225 (second alteration in original) (quoting Mayo, 566 U.S. at 73, 79, 82).

To a large extent, Columbia raises the same arguments at step two that it made at step one, and these arguments have no more merit at step two than they had at step one.

However, Columbia does raise one argument at step two that merits further attention. Columbia argues the “model Case: 24-1243 Document: 132 Page: 16 Filed: 03/11/2026

While Columbia’s argument that the model of function calls does not render the claims abstract was forfeited in this court, it has not forfeited its argument that the model of function calls is an inventive concept at step two, which was also raised before the district court.

Norton argues that we can make a determination as to this step two issue based on the record before us. Columbia argues that factual issues remain that preclude our deter- mining step two of Alice in the first instance. In this re- spect, we agree with Columbia. Since we are reviewing an action of the district court at the pleadings stage, we draw all reasonable factual inferences in favor of the nonmovant.

Amdocs (Isr.) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1293 (Fed. Cir. 2016) (applying Fourth Circuit law). The district court construed the phrase “model of function calls for a [part/portion] of the program” to mean “model of func- tion calls created by modeling program executions.”

J.A. 178. Drawing all reasonable inferences in Columbia’s favor, the parties’ dispute over whether this feature was conventional is a question of fact that precludes judgment on the pleadings.

As this factual issue was raised before the district court and left unaddressed in the district court’s decision on § 101, we believe that it is best addressed by the district court in the first instance. We therefore vacate the district court’s denial of judgment on the pleadings as to patent el- igibility, hold that the claims are directed to an abstract idea, and remand for the district court to solely consider, at step two, the question whether the claimed model of func- tion calls feature was conventional.

II. REMAINING ISSUES Given the interest in judicial efficiency, we address the remaining issues raised by the parties, which have been fully briefed, because these issues may again be relevant on remand, depending on whether the claims are Case: 24-1243 Document: 132 Page: 17 Filed: 03/11/2026

TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 17 determined to be patent eligible. See Optis Cellular Tech., LLC v. Apple Inc., 139 F.4th 1363, 1377 (Fed. Cir. 2025); Jiaxing Super Lighting Elec. Appliance, Co. v. CH Lighting Tech. Co., 146 F.4th 1098, 1110 (Fed. Cir. 2025); accord La- serDynamics, Inc. v. Quanta Comput., Inc., 694 F.3d 51, 78 (Fed. Cir. 2012).

A. CLAIM CONSTRUCTION AND INFRINGEMENT Norton argues that the district court’s construction of the claim term “emulator” was erroneous and that under Norton’s construction it did not infringe the asserted claims. Claim construction based on intrinsic evidence is an issue of law that we review de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331 (2015). To the extent the claim construction depends on extrinsic evidence, we review the district court’s factual findings under a clearly erroneous standard. Id. at 326.

Claims are construed based on the “ordinary and cus- tomary meaning . . . that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). The skilled artisan “is deemed to read the claim term not only in the context of the partic- ular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Id. Thus, claim construction begins with an analysis of the intrinsic record of the patent. Id. at 1313–14. But extrinsic evidence may be relevant if the intrinsic record does not resolve the claim construction issue. See id. at 1317.

The claims here do not define the term “emulator.” The function of the emulator is only described generally in the specification as involving the monitoring and execution of programs. See ’322 patent, col. 3 ll. 28–37, col. 13 ll. 1–3, 16–27, 52–67, col. 14 ll. 18–21. Primarily relying on the specification, Columbia successfully argued before the dis- trict court that “emulator” should be construed as “Soft- ware, alone or in combination with hardware, that permits Case: 24-1243 Document: 132 Page: 18 Filed: 03/11/2026

Norton’s construction is incorrect in requiring simulation.

The question is whether an emulator in the patent re- quires the ability to simulate. The claims on the face re- quire an “emulator” rather than a “simulator.” Simulate, in this context, appears to refer to executing programs on a “virtual” processor rather than the real computer proces- sor. J.A. 2788. The specification references some embodi- ments that execute on a virtual processor. See ’322 patent, col. 14 ll. 2–3, 57–59. Additionally, the Valgrind emulator, named in the specification, appears to simulate a com- puter. Id. col. 3 ll. 28–37; J.A. 3428 (describing the Valgrind emulator as “simulat[ing] the operation of the CPU”). However, we do not read the specification as limit- ing the claims to only emulators that simulate computer systems.

Norton nonetheless argues the prosecution history sup- ports its construction. First, it points to language in the provisional application that states that in Selective Trans- actional Emulation, “the emulator . . . executes all instruc- tions on the virtual processor.” J.A. 4215. However, this is only a description of one embodiment. Second, Norton ar- gues that the prior art cited in the information disclosure statement refers to emulators as simulating in a virtual en- vironment, but a narrow definition used by one patent can- not narrow the scope of another patent that does not disclaim the broader meaning of the term. Neither of the patents cited in the information disclosure statement pur- port to define the meaning of the term in general usage.

Based on the intrinsic evidence of the patent, we conclude that there is no requirement that the claimed emulator simulate a computer system.

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Even if the intrinsic evidence proffered by Columbia were less than clear, Norton’s remaining arguments— based on extrinsic evidence—are unpersuasive. To be sure, some evidence presented in the form of language from tech- nical dictionaries supports Norton’s construction. See, e.g., Dictionary of Computer Science, Engineering, and Technol- ogy 158, J.A. 3694 (Phillip A. Laplante ed., 2001) (defining an emulator as “the firmware that simulates a given ma- chine architecture”). But the proffered dictionaries also in- dicated that an emulator does not necessarily require “simulation” if it can provide another method of imitating the operation of a computer system. See Glossary, Virus Bulletin, J.A. 3226 (“Emulation refers to any method of cre- ating a fake environment . . .”); Microsoft Computer Dic- tionary 191, J.A. 3223 (5th ed. 2002) (defining an emulator as something “mak[ing] one type of computer or component act as if it were another”). At least one of the textbooks that Norton cites also supports the idea that emulators do not necessarily involve simulation or use of a virtual ma- chine. See J.A. 3207 (describing two kinds of emulation, one involving a “virtual machine” and the other “using the [real] processor”). Thus, the extrinsic evidence here indi- cates that Norton’s proposed construction maps onto some, but not all, accepted definitions of the term “emulator.”

Norton’s expert testimony opinion was more supportive of Norton’s position. The expert testified that a skilled ar- tisan would understand “emulator” to require simulation.

But his testimony was the kind of unsupported conclusory evidence that we have consistently held should be afforded no weight. See Smartrend Mfg. Grp., Inc. v. Opti-Luxx Inc., 159 F.4th 1322, 1330–31 (Fed. Cir. 2025) (“‘[C]onclusory’ testimony by experts unsupported by reliable extrinsic ma- terial . . . is insufficient.” (quoting Phillips, 415 F.3d at 1318)); Network Com., Inc. v. Microsoft Corp., 422 F.3d 1353, 1361 (Fed. Cir. 2005); SkinMedica, Inc. v. Histogen Inc., 727 F.3d 1187, 1210 (Fed. Cir. 2013); see also Phillips, 415 F.3d at 1318 (“[E]xpert reports . . . [are] generated at Case: 24-1243 Document: 132 Page: 20 Filed: 03/11/2026

We therefore agree that the district court properly con- strued the “emulator” as not requiring simulating a com- puter system.

Norton argues alternatively that even under the dis- trict court’s construction, its products did not infringe the asserted claims as a matter of law, and the district court erred in denying its motion for JMOL on noninfringement.

We review the district court’s denial of JMOL de novo.

Trudell Med. Int’l Inc. v. D R Burton Healthcare, LLC, 127 F.4th 1340, 1350 (Fed. Cir. 2025) (applying Fourth Cir- cuit law). Norton’s theory of noninfringement is that its product feature, SONAR/BASH, standing alone, acts as the claimed “emulator.” Norton argues that because the claims require programs to be executed “in” the emulator, and it is undisputed that programs are not executed “in” SONAR/BASH, its products do not infringe the asserted claims. This argument is meritless. Columbia presented sufficient evidence that SONAR/BASH—operating in con- junction with an operating environment—was the emula- tor. The evidence supported the proposition that Norton’s products enable computers to execute programs in the op- erating environment. The district court concluded that “this presented a factual question for the jury.” J.A. 184 n.17. We agree that there was sufficient evidence to allow a reasonable jury to conclude that Norton’s products in- fringed the asserted claims. 5

TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 21

B. WILLFUL INFRINGEMENT Norton challenged the jury’s finding of willfulness in its JMOL motion, arguing that it lacked notice of the pa- tents prior to receiving actual notice from Columbia 6 and had a reasonable belief that its products did not infringe.

“Willful infringement is a question of fact reviewed for sub- stantial evidence following a jury trial.” Polara Eng’g Inc. v. Campbell Co., 894 F.3d 1339, 1353 (Fed. Cir. 2018) (cit- ing WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1341–42 (Fed. Cir. 2016)). An infringement may be willful if the in- fringer knew or should have known of the patent’s exist- ence. See Arctic Cat Inc. v. Bombardier Recreational Prods. Inc., 876 F.3d 1350, 1371–72 (Fed. Cir. 2017).

As the district court recognized, “[s]ufficient evidence exists on the record that would support a jury finding that Norton knew about the Columbia professors’ designs and work before the patents issued” including the provisional application. J.A. 198 & n.22. An inventor of the ’322 and ’115 patents testified that a Norton representative at- tended a workshop in 2004 where he discussed the re- search that became the basis of the patents. He further testified that it was his understanding that Norton was aware of the patent rights Columbia was seeking based on communications he had with Norton about potentially li- censing the claimed invention as early as November 2005, after the provisional patent application had been filed. We have established that notice of a pending patent applica- tion is sufficient for a jury to find that the infringer should argument was not raised in Norton’s JMOL motion before the district court, we find it forfeited.

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Because “culpability is generally measured against the knowledge of the actor at the time of the challenged con- duct,” Norton was required to show that it “act[ed] on the basis of the defense” or was “aware of it” at the relevant time. See Halo, 579 U.S. at 105. Here, the district court identified evidence that Norton’s software development team “failed to investigate any potential infringement” by the SONAR/BASH feature of their products. J.A. 125.

Even assuming the existence of objectively reasonable de- fenses, a reasonable jury could have found that Norton did not actually rely on them when deciding to develop and dis- tribute its software product. See C R Bard Inc. v. AngioDy- namics, Inc., 979 F.3d 1372, 1380 (Fed. Cir. 2020). The district court did not err in denying JMOL on the issue of willfulness.

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C. FOREIGN SALES Norton argues that the district court erred in denying JMOL of no damages based on the district court’s instruc- tion as to foreign sales. We agree.

“It is the general rule under United States patent law that no infringement occurs when a patented product is made and sold in another country.” Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 441 (2006). This general principle applies to both direct and indirect infringement. Id. at 443 (citing Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 526–29 (1972)). Although Congress has cre- ated “an exception to the general rule” with 35 U.S.C. § 271(f), that provision is not implicated in this case. See Microsoft, 550 U.S. at 442; accord id. at 444; Life Techs.

Corp. v. Promega Corp., 580 U.S. 140, 151 (2017).

Here, at Columbia’s request, the jury was instructed: Columbia is entitled to damages based on sales to customers located outside of the United States if you find that the infringing product sold to those customers was made in or distributed from the United States, even if the infringing product is delivered to a customer and used by the customer outside the United States.

Tr. of Trial at 2842:1–7, Trs. of Columbia Univ. v. Syman- tec, Corp., No. 3:13-cv-808 (E.D. Va. May 10, 2022), Dkt.

No. 1220 (emphasis added). The verdict form also asked jurors to identify whether the reasonable royalty award “include[d] a royalty for Norton’s sales to customers located outside of the United States.” J.A. 43917. The verdict form stated that if this was marked “yes,” then the jury “must check ‘yes’ to at least one of the three questions below,” re- ferring to separate inquiries as to whether the infringing product was made in, distributed from, or sold in the United States. J.A. 43917–18. The jury indicated it found Case: 24-1243 Document: 132 Page: 24 Filed: 03/11/2026

“The Supreme Court has recognized the important dis- tinction between software and a particular copy of it on a [computer-readable medium].” Brumfield, Tr. for Ascent Tr. v. IBG LLC, 97 F.4th 854, 880 (Fed. Cir. 2024) (citing Microsoft, 550 U.S. at 447–48, 449 n.10, 451 & n.12.). Mi- crosoft Corp. v. AT&T Corp. concerned a patent that claimed an “apparatus” that was capable of performing cer- tain functions. 550 U.S. at 446. The question was whether § 271(f) (knowingly supplying “components” of an infring- ing product from the United States with the intent that they are combined into the infringing product outside the United States) applied to “computer software first sent from the United States to a foreign manufacturer on a mas- ter disk, or by electronic transmission, then copied by the foreign recipient for installation on computers made and sold abroad.” Id. at 441. The patentee argued that the

J.A. 43918.

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TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 25 computer software transmitted from the United States was a “component” that was later incorporated into an infring- ing product that was sold abroad. Id. at 450–51.

Although Microsoft involved § 271(f), Microsoft’s hold- ing that infringement only occurred when software was “in- stalled on a computer,” id. at 446, equally applies here.

Microsoft establishes that software in the abstract—that is, software not physically encoded in a “tangible copy” like a CD or hard drive—is akin to a “blueprint” or “a sche- matic, template, or prototype.” Id. at 449–50. If someone abroad builds an infringing product based upon a blueprint that exists in the United States, for example, then the prod- uct was still made abroad. See id. at 442. So too, software is not tangible—or capable of infringing the asserted claims—until tethered in a particular copy of the software encoded in a computer-readable medium. See id. at 450– 51. Under the logic of Microsoft, we conclude, as a matter of law, that the products sold to Norton’s foreign customers were made outside the United States. Therefore, and for the reasons further discussed below, Columbia’s damages theory must fail under each of the four asserted claims.

The four claims at issue here reflect one system claim, two method claims, and one computer-readable-medium claim. The system claim, ’322 patent, claim 27, includes a “processor.” Like the apparatus claim at issue in Microsoft, this claim is not infringed until a particular instance of software is installed onto a computer with a processor. See Centillion Data Sys., LLC v. Qwest Commc’ns. Int’l, Inc., 631 F.3d 1279, 1288 (Fed. Cir. 2011). Because the in- stances of software sold to customers located abroad are not installed on a computer in the United States, those in- stances were not made in or distributed from the United States.

The same conclusion follows as to the other claims as- serted here. A method claim is only infringed when the claimed process is performed; it is not infringed by the Case: 24-1243 Document: 132 Page: 26 Filed: 03/11/2026

This leaves only claim 11 of the ’322 patent, the com- puter-readable medium claim. Columbia argues that this claim must be treated differently, because it does not re- quire that a particular version of software be first installed on a computer with a processor to be infringing. It is true that claim 11 does not require software to be installed on a device with a processor, but claim 11 does still require that the software be encoded in a particular “non-transitory computer-readable medium.” ’322 patent, claim 11. While a non-transitory computer-readable medium may be cre- ated on a server in the United States, that medium is not exported abroad. The computer-readable media sold to for- eign customers are only created once the foreign computer encodes the software on its hard drive, which occurs out- side the United States. These computer-readable media are—like the apparatuses in Microsoft—created outside the United States and therefore cannot be domestically in- fringing. Under the logic the Court applied in Microsoft, these cannot constitute infringing products that were made in or distributed from the United States.

Nonetheless, Columbia points out that under our deci- sion in Brumfield, Trustee for Ascent Trust v. IBG LLC (which relied on the Supreme Court’s decision in Western- Geco LLC v. Ion Geophysical Corp., 585 U.S. 407 (2018) and was decided after the trial in this case), a finding of domestic infringement allows a patent owner to recover Case: 24-1243 Document: 132 Page: 27 Filed: 03/11/2026

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“complete compensation,” including damages based on for- eign activity shown to be caused by domestic infringement.

97 F.4th at 872, 875. Columbia argues that this was the case here—the foreign damages verdict was supported by substantial evidence because, under Brumfield, the jury could have found that the domestic infringement involved in creating its master copies, which enabled the foreign sales, were the cause of the foreign sales damages. How- ever, the jury was not instructed, and Columbia did not seek an instruction, that they could grant a reasonable roy- alty for foreign sales based on this theory. We cannot re- form the damages theory actually presented to the jury in favor of an alternative that was not, even if the alternative would have been legally valid. See Promega Corp. v. Life Techs. Corp., 875 F.3d 651, 666 (Fed. Cir. 2017) (“[A] pa- tent owner may waive its right to a damages award when it deliberately abandons valid theories of recovery in a sin- gular pursuit of an ultimately invalid damages theory.”).

We thus need not reach the question of whether Columbia’s theory of foreign damages was proper under the causation theory of Brumfield.

The district court relied on two other grounds to sup- port the jury’s award of foreign damages, but they both fail.

First, the district court held that Norton could be liable for joint infringement based on its domestic actions. This the- ory was not clearly articulated, and it fails in any event be- cause in order for Norton to be liable for joint infringement, under the district court’s instruction, the product must be “made in” or “distributed from” the United States, a condi- tion that is not sustained even under a joint infringement theory. 8 Second, the district court held that the jury could

D. ENHANCED DAMAGES Norton challenges the district court’s imposition of en- hanced damages, arguing that the district court improperly weighed the factors we articulated in Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992), abrogated in part on other grounds by Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996)). Enhanced damages under 35 U.S.C. § 284 may be warranted if infringement is willful and the district court finds that the infringer’s conduct is suffi- ciently egregious to warrant the enhanced damages. Pre- sidio Components, Inc. v. Am. Tech. Ceramics Corp., 875 F.3d 1369, 1382 (Fed. Cir. 2017). A district court is not required to analyze the Read factors in making an en- hancement determination, id., but we have held that the Read factors are an appropriate method of weighing the particular circumstances of the case to determine whether the relevant conduct is sufficiently egregious to warrant enhanced damages, see SRI Int’l, Inc. v. Cisco Sys., Inc. (“SRI II”), 14 F.4th 1323, 1330–31 (Fed. Cir. 2021). We steps in the method, but that Norton performed the step of notifying the application community domestically. This ar- gument fails because joint infringement of that method claim could only occur if all the steps of the method are per- formed domestically. See NTP, Inc. v. Rsch. In Motion, Ltd., 418 F.3d 1282, 1318 (Fed. Cir. 2005) (“We therefore hold that a process cannot be used ‘within’ the United States as required by section 271(a) unless each of the steps is performed within this country.”), abrogated in part on other grounds by Zoltek Corp. v. United States, 672 F.3d 1309 (Fed. Cir. 2012) (en banc).

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TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 29 review a district court’s grant of enhanced damages for abuse of discretion. Id. at 1327. “[A] clear error of fact, an error of law, or a manifest error of judgment” would consti- tute an abuse of discretion. Id. at 1330 (quoting Va. Panel Corp. v. MAC Panel Co., 133 F.3d 860, 867 (Fed. Cir. 1997)).

Here, after weighing the Read factors, the district court enhanced damages by a factor of 2.6. Norton takes issue with the district court’s analysis of two of the Read factors in particular. First, Norton argues that the district court’s analysis of factor three—litigation misconduct—requires vacatur of the enhanced damages order. We agree. In the district court’s contempt order sanctioning Quinn for fail- ing to comply with its order to disclose communications with Dr. Dacier, it imposed as a penalty “a negative infer- ence of egregiousness regarding any unproduced communi- cations . . . for the purpose of deciding Columbia’s pending motion[] for enhancement of the jury’s damage award un- der 35 U.S.C. § 284.” J.A. 60. In consideration of this neg- ative inference, and in light of the alleged misconduct notwithstanding the inference, the court found that this factor weighed “as heavily in favor of enhancement as it could.” J.A. 130. Because we reverse the contempt order in the companion case also decided today, the award of en- hanced damages cannot be sustained. 9 If, following the

However, the district court relied on the negative inference at least in determining the magnitude of enhanced dam- ages awarded and gave that factor particular weight. See J.A. 139 (“As a whole, the clear weight of the Read factor Case: 24-1243 Document: 132 Page: 30 Filed: 03/11/2026

Norton also argues that the district court erred under Read factor three in inaccurately characterizing other con- duct as litigation misconduct. Litigation misconduct refers to “bringing vexatious or unjustified suits, discovery abuses, failure to obey orders of the court, or acts that un- necessarily prolong litigation.” i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 859 (Fed. Cir. 2010). The district court repeatedly chastised Norton for “relitigating” and “re- hashing settled issues.” E.g., J.A. 106, 142. Repetitive ar- guments are generally not the kind of litigation misconduct warranting enhancement. See Jack Guttman, Inc. v. Kopykake Enters., Inc., 302 F.3d 1352, 1361 (Fed. Cir. 2002) (noting that claim construction may be revisited and altered on a “rolling” basis as “understanding of the tech- nology evolves”). It appears that some of the alleged mis- conduct falls into this category, which would also require the district court to revisit whether, and to what degree, this factor supports enhanced damages if the claims are found to be patent eligible.

Finally, Norton argues that the district court erred in not finding that the case was a close case in analyzing Read factor five, closeness of the case. The district court “[did] not find that this case was close,” largely relying on its con- clusion that “this was not a close case for the jury,” and declined to address the strength of Norton’s affirmative de- fenses. J.A. 133–34. The court further concluded that the fact that other asserted patents were found to not be analysis weighs heavily in favor of enhancement, especially in light of the Court’s negative inference . . . .” (emphasis added)).

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TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC. 31 infringed was “not relevant” to the enhancement inquiry.

J.A. 133.

By limiting its analysis to solely the case as submitted to the jury, the district court improperly failed to consider the overall circumstances of the case at least because, as to the asserted claims for which infringement was found, the district court failed to address Norton’s non-infringement theories and affirmative defenses. This was error. See Cy- bor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1461 (Fed. Cir. 1998) (en banc), abrogated in part on other grounds by Teva Pharms., 574 U.S. 318 (finding of infringe- ment as to all claims did not mean case was not close where party made “justifiable albeit unsuccessful arguments” as to other aspects of the case). The district court was re- quired to address whether the legal defenses raised by the defendant presented close questions, even if they were un- successful. See Polara, 894 F.3d at 1355 (vacating award of enhanced damages and remanding where district court failed to recognize the closeness of defendant’s affirmative defense).

We today find that substantial questions are presented on the issue of patent eligibility under § 101. Norton also raised other questions as to infringement. After the first claim construction opinion, Columbia conceded that it could not prove infringement. Though we reversed the claim construction, the initial decision indicates that Nor- ton’s construction was reasonable. If the claims are found to be patent eligible, the district court must consider the closeness with respect to each of these questions, not merely the ultimate question submitted to the jury. In light of these considerations and the fact that it may ulti- mately be unnecessary to address the question of enhance- ment, we think that we should not, at this time, address Norton’s argument that the district court, in considering the closeness of the case, was required to consider other patent claims that were previously and unsuccessfully as- serted in this case.

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32 TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC.

E. ATTORNEYS’ FEES Finally, the district court based its decision on attor- neys’ fees in part relying on the negative inference awarded as a sanction in its contempt order. While Norton has not otherwise challenged the district court’s analysis of the at- torneys’ fees issue, on remand the attorneys’ fees issue re- quires reconsideration. The district court must reconsider the issue of fees unburdened by the negative inference from the contempt finding.

CONCLUSION We reverse the district court’s determination that the ’322 and ’115 patents are not directed to an abstract idea at Alice step one and remand for further proceedings under step two, and if the patent claims are determined to be eli- gible, to reduce the damages award to eliminate the royalty based on foreign sales and reconsider its attorneys’ fees and enhanced damages decisions consistent with this opin- ion.

REVERSED-IN-PART, VACATED-IN-PART, AND REMANDED COSTS No costs.