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damages if we were the jury, but rather whether there is evidence to support what the

jury decided. See Fuji Photo, 394 F.3d at 1378. Here, the jury’s award was supported

by the testimony of Wagner, i4i’s damage expert, who opined that a reasonable royalty

was between $200 and $207 million. The award was also supported by the testimony

of Wecker, i4i’s survey expert, who explained that the survey’s conservative

assumptions (i.e., that none of the companies who failed to respond infringed) meant

the

damages

figure

was

“really

an

underestimate”

and

“way

low.”

As

we

have

recognized previously, any reasonable royalty analysis necessarily involves an element

of approximation, and uncertainty. See Lucent, 580 F.3d at 1325; Unisplay, 69 F.3d at

517. Given the intensely factual nature of a damages determination and our deferential

standard of review, we are not in a position to second-guess or substitute our judgment

for the jury’s.

C. Enhanced Damages

Microsoft has only appealed the district court’s decision to enhance damages

under 35 U.S.C. § 284. Microsoft does not challenge the jury instructions on willfulness

or the sufficiency of the evidence supporting the jury’s willfulness finding.

Section 284 gives the district court discretion to “increase the damages up to

three times the amount found or assessed” by the jury. A finding of willful infringement

is a prerequisite to the award of enhanced damages. In re Seagate Technology, LLC.,

497 F.3d 1360, 1368 (Fed. Cir. 2007) (en banc). In this case, the question of whether

Microsoft willfully infringed the ’449 patent was submitted to the jury, which was

instructed that i4i had to prove Microsoft (1) was aware of the ’449 patent; (2) acted

despite an objectively high likelihood that its actions infringed a valid patent; where (3)

2009-1504

38

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