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Wecker opined that this estimate was conservative, “really an underestimate”

and “way low” because he assumed every company that did not respond was not

infringing, which was highly unlikely and introduced a “serious downward bias.”

Microsoft contested the accuracy of the survey, based on the low response rate, use of

logical imputation to correct inconsistent answers, and questions requiring estimates of

Word

usage

going

back

several

years.

In

response,

i4i’s

experts

opined

that

the

survey’s conservative assumptions about the unresponsive companies mitigated (and

perhaps even overcorrected) for those weaknesses.

Microsoft is correct that i4i’s expert could have used other data in his

calculations. The existence of other facts, however, does not mean that the facts used

failed to meet the minimum standards of relevance or reliability. See Fed. R. Evid. 702

advisory committee’s note. Under Rule 702, the question is whether the expert relied

on facts sufficiently related to the disputed issue. Here, that issue was a reasonable

royalty for the ’449 patent. We conclude that Wagner based his calculations on facts

meeting these minimum standards of relevance and reliability. Fed. R. Evid. 702.

As i4i’s expert explained, the facts were drawn from internal Microsoft

documents, publicly available information about other custom XML editing software, and

a survey designed to estimate the amount of infringing use. Thus, these facts had a

sufficient nexus to the relevant market, the parties, and the alleged infringement. While

the data were certainly imperfect, and more (or different) data might have resulted in a

“better” or more “accurate” estimate in the absolute sense, it is not the district court’s

role under Daubert to evaluate the correctness of facts underlying an expert’s

testimony. See Micro Chem., 317 F.3d at 1392. Questions about what facts are most

2009-1504

34

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