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Attorneys for Microsoft Corporation - page 21 / 74





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the relief sought in Microsoft’s new trial motion. Id. at 1335 (“a new trial on dam- ages is necessary”). By misconstruing and misapplying Lucent, the panel decision has eroded, if not completely eliminated, the salutary impact of that precedent. The decision here abjured any level of review beyond ensuring that Mr. Wagner had used the basic Georgia-Pacific framework. That result cannot be reconciled with Lucent, and the conflict between the two decisions will sow confusion among district courts reviewing damages awards on motions for new trials.

The damages award here is unprecedentedly large, yet the panel decision–– like the district court––declined to determine whether it is excessive. That decision is both procedurally defective (in deeming JMOL motions a necessary prerequisite to excessiveness challenges) and substantively incorrect (in refusing to overturn a grossly excessive award, contrary to both Lucent and the Patent Act’s express rea- sonableness requirement). These errors work an injustice in this case—where Mi- crosoft will be forced to pay an unreasonable and excessive amount in damages without benefit of the proper judicial review required by statute and case law—and will have adverse ramifications for all infringement cases in which damages are sought. The decision also puts this Court at odds with regional circuit precedent regarding excessiveness review of damages awards, an issue that extends far be- yond patent law; the en banc Court should correct that divergence now.


The Standard For Injunctive Relief Applied By The Decision Conflicts With Supreme Court And Regional Circuit Precedent

Injunctive relief is “unavailable” absent a showing of “future injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (emphasis added). Notwithstand- ing this settled rule, the decision here sustained an injunction based only on a


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