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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

a

new

trial

on

damages.

The

damages

award,

while

high,

was

supported

by

the

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

2009-1504

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