Microsoft waived its ability to have us decide that question by failing to file a pre-verdict
JMOL on damages. Fed. R. Civ. P. 50(a), (b).
Had Microsoft filed a pre-verdict JMOL, it is true that the outcome might have
been different. Given the opportunity to review the sufficiency of the evidence, we could
have considered whether the $200 million damages award was “grossly excessive or
monstrous” in light of Word’s retail price and the licensing fees Microsoft paid for other
patents. Cf. Lucent, 580 F.3d at 1325-32. As this court did in Lucent, we could have
analyzed the evidentiary basis for the Georgia-Pacific factors, and whether the
benchmark (XMetaL) was sufficiently comparable. Id.
However, we cannot. Instead of the more searching review permitted under Rule
50(b), we are constrained to review the verdict under the much narrower standard
applied to denials of new trial motions. Duff, 489 F.3d at 730. This standard is highly
deferential: we may set aside a damages award and remand for a new trial “only upon
a clear showing of excessiveness.” Id. (emphasis added). To be excessive, the award
must exceed the “maximum amount calculable from the evidence.” Carlton v. H. C.
Price Co., 640 F.2d 573, 579 (5th Cir. 1981). We must affirm unless the appellant
clearly shows there was no evidence to support the jury’s verdict. Duff, 489 F.3d at
730, 732; see also Industrias Magromer, 293 F.3d at 923.
Under this highly deferential standard, we cannot say that Microsoft is entitled to
evidence presented at trial, including the expert testimony—which the jury apparently
credited. See Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512, 519 (Fed. Cir. 1995).
On appeal, the question is not whether we would have awarded the same amount of