X hits on this document

PDF document

Attorneys for Microsoft Corporation - page 61 / 74

168 views

0 shares

0 downloads

0 comments

61 / 74

help

the

jury

evaluate

the

expert

testimony.

See

C.

A.

May

Marine

Supply

Co.

v.

Brunswick Corp., 649 F.2d 1049, 1054-55 (5th Cir. 1981). The testimony of Wecker,

the expert who helped design the survey, sufficed to show that the survey was compiled

in accordance with acceptable survey methods.

For these reasons, the district court did not abuse its discretion in admitting the

survey.

B. Reasonableness of the Damages Award

Microsoft urges us to follow this court’s recent decision in Lucent, 580 F.3d 1301,

and hold that $200 million is not a reasonable royalty. We cannot, however, because

the procedural posture of this case differs from Lucent, and that difference controls this

case. Although Microsoft now objects to the size of the damages award, we cannot

reach that question because Microsoft did not file a pre-verdict JMOL on damages.

In Lucent, the accused infringer filed a pre-verdict JMOL motion challenging the

sufficiency

of

the

damages’

evidence.

Id.

at

1309.

Though

Microsoft

could

have

similarly filed a pre-verdict JMOL, for whatever reason, it chose not to. See Fed. R. Civ.

P. 50(a). On appeal, what that strategic decision means for Microsoft is that we cannot

decide whether there was a sufficient evidentiary basis for the jury’s damages award.

Cf. Lucent, 580 F.3d at 1332 (holding that “we see little evidentiary basis under

Georgia-Pacific”

for

the

damages

award).

Asking

whether

a

damages

award

is

“reasonable,” “grossly excessive or monstrous,” “based only on speculation or

guesswork,” or “clearly not supported by the evidence,” are simply different ways of

asking whether the jury’s award is supported by the evidence. Fuji Photo, 394 F.3d at

1378; Catalina Lighting, Inc. v. Lamps Plus, Inc., 295 F.3d 1277, 1290 (Fed. Cir. 2002).

2009-1504

36

Document info
Document views168
Page views168
Page last viewedSun Dec 04 06:08:48 UTC 2016
Pages74
Paragraphs2162
Words19614

Comments