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RULE 35(b) STATEMENT Based on my professional judgment, I believe that the panel decision is con-

trary to the following decisions: Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); General Elec. Co. v. Joiner, 522 U.S. 136 (1997); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir. 2009); Shockley v. Arcan, Inc., 248 F.3d 1349 (Fed. Cir. 2001).

Based on my professional judgment, I believe that this appeal requires an answer to two precedent-setting questions of exceptional importance:

  • 1.

    Whether a $290,000,000 damages award—the largest ever sus- tained on appeal in a patent infringement case—can stand where:

    • a.

      The award rests on expert testimony that fails minimum stan- dards of reliability and is unmoored to the real world; and

  • b.

    Microsoft preserved its objection to the excessiveness of the award by moving for new trial or remittitur?

    • 2.

      Whether injunctive relief can be predicated solely on past harm?

______________________________ Thomas G. Hungar GIBSON, DUNN & CRUTCHER LLP Attorney of Record for Microsoft Corporation

POINT OF FACT MISAPPREHENDED BY THE PANEL

In addition to the foregoing issues, the panel’s opinion states that Microsoft

“does not challenge . . . the sufficiency of the evidence supporting the jury’s will- fulness finding.” Slip op. 38. That is plainly incorrect. See Blue Br. 68-72; Red

Br. 72-75 (answering same); Gray Br. 36-37.

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