defendant “could have reasonably believed was non-infringing” and another use that
was “non-infringing,” here there was substantial evidence Microsoft knew its instructions
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  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.
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,
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