concurring in part, dissenting in part.
I concur in much of the court’s decision. However, the court provides no sufficient basis for overturning the findings of the jury and overturning the affirmance by the district court with respect to the question of anticipation of claims 1 and 3.
The issue of anticipation is a question of fact, and the jury verdict that there is not anticipation must be sustained if there is substantial evidence in its support. It is not disputed that the prior art (the defendant’s '598 patent) does not disclose and does not embody the DNS lookup of the Akamai '703 patent. There was extensive evidence, presented by both sides, as to the content of the prior art; there was substantial evidence that the prior art’s origin server “reflector” is a different structure and method; and that the subject *1198matter of claims 1 and 3 does not read on the prior art. If there were any question concerning claims 1 and 3, the question would be one of obviousness; not anticipation. The jury verdict that these claims were not anticipated was supported by substantial evidence, with a lengthy and thorough and fully presented trial, and a verdict that could have been reached by a reasonable jury. The criteria of reversal are not met.
Akamai correctly points out that the defendant makes no effort to discuss the support, or lack thereof, for the jury verdict. My colleagues on this panel commit the same error, for the majority opinion says not a word about the evidence at trial, but simply decides the question for itself. Reversal of the judgment rendered on a jury verdict is appropriate only if there is no legally sufficient evidentiary basis for the verdict. See Fed.R.Civ.P. 50(a)(1); Intercity Maintenance Co. v. Local 251, Service Employees International Union, 241 F.3d 82, 86 (1st Cir.2001); National Presto Industries, Inc. v. West Bend Co., 76 F.3d 1185, 1192 (Fed.Cir.1996).
The sufficiency of the evidence must be reviewed in the light most favorable to the party that received the verdict, with all reasonable inferences drawn in favor of the verdict. Sheils Title Co. v. Commonewalth Land Title Insurance Co., 184 F.3d 10, 19 (1st. Cir.1999); SIBIA Neurosciences, Inc. v. Cadus Pharmaceutical Corp., 225 F.3d 1349, 1355 (Fed.Cir.2000). It was not disputed, indeed it was admitted by C & W, that the prior art did not show either the claim 1 limitation that the content server is “distinct from the content provider server” (clause 3 of claim 1) or that “the embedded object identified by the modified embedded object URL is served from a given one of the content servers as identified by the first level and second level' name servers” (sixth clause of claim 1). Even C & W’s technical expert Dr. Dewar conceded that “the one thing that is not taught explicitly by the '598 patent is the use of DNS.” Claim l’s clauses 4 and 5 require “first level” and “second level” “domain name service (DNS) resolution.” Although Dr. Dewar went on to express the opinion that these changes would have been obvious, he did not testify that they were present, even inherently, in the '598 reference. The prior art was not shown to suggest or use or contemplate the DNS as used by the MIT inventors.
Claim 1 requires identification of the content server of the distributed hosting framework during the DNS lookup. Witnesses for both sides agreed that this differs from ordinary use in the context of the internet, and that persons experienced in this field would readily so understand. It is seriously incorrect for this court to reconstruct the invention and then to invalidate the claims on its own findings, ignoring the evidence at the trial.6
There was substantial evidence by which the jury could have found that all of the limitations of claims 1 and 3 are not present in the prior art. The acknowledged differences from the prior art render untenable the panel majority’s restatement of the issues, as well as their resolution of the factual question of anticipation in order to invalidate the claims.
I respectfully dissent.
. The claims were construed by agreement before trial, and the only issues relate to validity and infringement. It is inappropriate to recharacterize the factual question of anticipation as one of claim construction, instead of deciding the appeal on the basis on which it was tried, and on the appropriate standard for review of jury verdicts.