Quote:
Originally Posted by Mmmm, Burger (C.J.)
Before or after the verdict?
It seems that arguing damages pre-verdict is particularly difficult. It's one thing to move for JMOL on the ground that the plaintiff failed to show, say, one necessary element of the claim. But for damages you would have to argue that no reasonable jury could find damages exceeding X amount, and then litigate whatever that amount is. Damages are on a continuum not binary (yes/no), so it seems like a particularly unproductive form of motion. It's another thing to argue post-verdict that the damages were excessive.
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what you have is an expert saying MS sold X software packages and $96 is a reasonable royalty. it sounds like lost profits was not in the mix, but usually the P's claim would be
i'm entitled to my lost profits of $150 on 2/3 of X and the $96 royalty for the other 1/3 X, and if you disagree I should get lost profits then the $96 for the whole X
so it goes to the jury and D has to move that if the jury buys that, it's excessive? what if the jury hears D's proposal of a $.5 royalty and p's $96 and splits. does my motion that $96 is excessive save my right?
anyway, no judge would grant any of it then. a good judge says "let's see what the jury does first" on most issues. there are about 3 dozens issues of similar weight in this case and they're all patent intensive. it's stupid that you'd have to move on all of them.
