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Attorneys for Microsoft Corporation - page 17 / 74





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inforcing the common perception of a broken patent system that requires prompt legislative reform.3


The Decision’s Refusal To Review The Damages Award For Excessiveness Conflicts With All Prior Cases

The jury’s egregiously excessive damages award—$200 million for an ob- scure function that most customers never even use—cries out for judicial review. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435 (1996) (appellate re- view of damages awards is “a control necessary and proper to the fair administra- tion of justice”). Yet the district court failed to conduct such a review in examin- ing Microsoft’s motion for a new trial, and when Microsoft challenged that failure on appeal, the decision here held that this Court “cannot” conduct traditional ex- cessiveness review—i.e., examining whether the amount of damages awarded was “‘reasonable’” and not “‘grossly excessive or monstrous’” or “‘based only on speculation or guesswork’”—solely because Microsoft “fail[ed] to file a pre- verdict JMOL.” Slip op. 36-37. That holding is unprecedented, erroneous, and in conflict with decisions of the Supreme Court, this Court, and every other court of appeals. En banc review is warranted to ensure that patent defendants receive the post-verdict review of damages awards to which they are entitled.

As a threshold matter, the holding that a “pre-verdict JMOL” is required to preserve full appellate review of excessiveness challenges must be wrong, because there is by definition no damages award to challenge as excessive before a verdict

3 The damages award is also flawed because it rests on a staggeringly inaccurate survey. i4i’s survey expert concluded from just 19 positive responses, many of which were “corrected” by the expert because they were internally inconsistent, that 2.1 million persons use Word’s Custom XML feature. See Blue Br. 55-60.


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