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The decision’s use of a “narrower standard” than the traditional “grossly ex- cessive” analysis clearly mattered here, because the decision stated that this nar- rower standard “controls this case” (slip op. 36), and acknowledged that “the out- come might have been different” if the panel “could have considered whether the $200 million damages award was ‘grossly excessive or monstrous’” by undertak- ing, as in this Court’s recent decision in Lucent, 580 F.3d at 1333, an analysis of the “evidentiary basis for the Georgia-Pacific factors and whether [the chosen benchmark] was sufficiently comparable.” Slip op. 37.

There is no question that, under the “grossly excessive” standard required by precedent, the panel decision’s reasoning conflicts with Lucent. Lucent held that a court applying that standard is required to undertake an independent examination of the basis for an expert’s opinion about a reasonable royalty and assess the rea- sonableness of the expert’s ultimate conclusion. See 580 F.3d at 1324-36. Lucent itself, for example, held unreasonable a jury award based on a 5% royalty for a far less obscure feature of Microsoft software than the portion of the XML editor at issue here, citing the “glaring imbalance between [the] infringing and non- infringing” functionalities of the accused software. Id. at 1333. And Lucent, in- stead of entering judgment for Microsoft, remanded for a new trial, thus granting

(reversing denial of new trial where “comparison of the factual record and the ver- dict” showed damages verdict was “against the clear weight of the evidence”) (in- ternal citation and quotation marks omitted); E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1285 (7th Cir. 1995) (reviewing whether verdict was “mon- strous[]”); Hollins v. Powell, 773 F.2d 191, 197 (8th Cir. 1985) (reversing denial of new trial where award was “monstrous” or “shocking”); Peyton v. DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002) (reviewing whether “the verdict is so inordi- nately large as to obviously exceed the maximum limit of a reasonable range”).


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