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defendant “could have reasonably believed was non-infringing” and another use that

was “non-infringing,” here there was substantial evidence Microsoft knew its instructions

would

result

in

infringing

use.

As

explained

in

our

discussion

of

contributory

infringement, Microsoft’s internal emails are substantial evidence of Microsoft’s

knowledge, both of the ’449 patent and the infringing nature of Word’s custom XML

editor. Regarding i4i’s software that practiced the invention, one Microsoft employee

remarked: “[W]e saw this tool some time ago and met its creators. Word [2003] will

make it obsolete. It looks great for XP though.” Evidence that consumers were using

Word in an infringing manner included Microsoft data on usage of Word, as well as a

Microsoft marketing document listing “real” examples of custom XML’s use in Word.

V. Damages

Microsoft protests the $200 million damages award on several grounds. We

begin by reviewing the propriety of various evidentiary rulings. We then decide whether

the district court abused its discretion by denying Microsoft a new trial on damages.

A. Evidentiary Rulings

We review evidentiary rulings for abuse of discretion. Huss v. Gayden, 571 F.3d

442, 452 (5th Cir. 2009); see Paz v. Brush Engineered Materials, Inc., 555 F.3d 383,

387-88

(5th

Cir.

2009).

Microsoft

challenges

the

admission

of

expert

testimony

on

damages, as well as a survey relied on by the expert. We address each in turn.

1. Expert Testimony

To determine whether expert testimony was properly admitted under Rule 702 of

the Federal Rules of Evidence, we use the framework set out in Daubert v. Merrell Dow

2009-1504

27

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