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relevant or reliable to calculating a reasonable royalty are for the jury. The jury was

entitled to hear the expert testimony and decide for itself what to accept or reject. See

Pipitone, 288 F.3d at 249-50.

As the Supreme Court explained in Daubert, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the

traditional and appropriate means of attacking shaky but admissible evidence.” 509

U.S.

at

596.

Microsoft

had

these

opportunities,

and

ably

availed

itself

of

them.

Microsoft presented expert testimony and attacked the benchmark, survey, and

calculation’s

reasonableness

on

cross-examination.

Cf.

Micro

Chem.,

317

F.3d

at

1392.

Based on this record, the district court did not abuse its discretion in admitting

Wagner’s expert testimony on damages.

2. The Survey

Microsoft also challenges the district court’s admission of the survey used to

estimate the amount of infringing use. We do not agree with Microsoft that the danger

of unfair prejudice substantially outweighed the survey’s probative value, so as to

warrant exclusion under Rule 403. Both of i4i’s experts, Wagner and Wecker, opined

that the survey dramatically underestimated the amount of infringing use. Given the

survey’s conservative assumptions, the district court did not abuse its discretion in

admitting

the

survey.

Further,

the

survey

was

properly

admitted

over

Microsoft’s

hearsay objection under Federal Rule of Evidence 703, since the survey was used to

estimate the amount of infringing use, a key number in i4i’s damage calculation. Given

the survey’s importance, evidence about its methodology and findings could certainly

2009-1504

35

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