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Attorneys for Microsoft Corporation - page 66 / 74





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Microsoft is correct that it would have been improper to enhance damages based

solely on litigation misconduct, and that this is not the prototypical case of litigation

misconduct.5 Typically, “litigation misconduct” refers to bringing vexatious or unjustified

suits, discovery abuses, failure to obey orders of the court, or acts that unnecessarily

prolong litigation. Jurgens, 80 F.3d at 1570-71 & n.3; see also Va. Panel Corp. v. MAC

Panel Co., 133 F.3d 860, 866 (Fed. Cir. 1997). Here, the misconduct was improper

statements by Microsoft’s counsel to the jury, in defiance of the court’s repeated

admonitions. However, the district court considered Microsoft’s litigation misconduct

only after finding that the other Read factors favored enhanced damages: “Finally, also

favoring enhancement is Microsoft’s counsel’s litigation conduct . . . .” Considering all

the Read factors and the district court’s statutory authority to treble damages under

§ 284, the actual award of $40 million was not an abuse of discretion.

VI. Permanent Injunction

We must decide whether the district court abused its discretion in granting a

permanent injunction against Microsoft, or in tailoring that injunction under eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

The permanent injunction prohibits Microsoft from (1) selling, offering to sell,

and/or importing into the United States any infringing Word products with the capability

of opening XML files containing custom XML; (2) using Word to open an XML file

containing custom XML; (3) instructing or encouraging anyone to use Word to open an

5 Enhanced damages are certainly not the sole remedy for attorney misconduct. Other tools, which may be more appropriate in the mine-run of cases, include the award of attorneys fees or sanctions. See 35 U.S.C. § 285; Fed. R. Civ. P. 11, 38; see also 28 U.S.C. § 1927.



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