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Old 01-22-2010, 05:12 PM   #2206
Mmmm, Burger (C.J.)
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Re: It was the wrong thread

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Originally Posted by Tyrone Slothrop View Post
The fact that the argument wasn't raised in the trial court suggests that it wasn't a likely winner on the merits in the appellate court, no? Maybe this is just a procedural way to put a dog out of its misery.
Perhaps so. And they reviewed it anyway, just under a nominally different standard.

But it doesn't matter whether the court got it right or wrong--it's a question of efficiency and whether they've enhanced it or reduced it.
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Old 01-22-2010, 05:28 PM   #2207
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Re: It was the wrong thread

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Perhaps so. And they reviewed it anyway, just under a nominally different standard.

But it doesn't matter whether the court got it right or wrong--it's a question of efficiency and whether they've enhanced it or reduced it.
I was more wondering how much egg was on the faces at Weil and Gibson. Do they now regret not having filed that motion, or did they think at the time that it wasn't worth the candle?
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Old 01-22-2010, 05:59 PM   #2208
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Re: It was the wrong thread

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Originally Posted by Tyrone Slothrop View Post
The fact that the argument wasn't raised in the trial court suggests that it wasn't a likely winner on the merits in the appellate court, no? Maybe this is just a procedural way to put a dog out of its misery.
how do you argue the award is excessive at trial? they did file motions just not that one.
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Old 01-22-2010, 06:02 PM   #2209
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Re: It was the wrong thread

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I was more wondering how much egg was on the faces at Weil and Gibson.
I wonder if microsoft sues it's lawyers.

it'd hard for them to say the lost argument was a loser when they took up valuable pages explaining it should prevail.
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Old 01-22-2010, 07:32 PM   #2210
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Re: It was the wrong thread

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how do you argue the award is excessive at trial?
IIRC, I've done it (and it was).
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Old 01-22-2010, 07:42 PM   #2211
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Re: It was the wrong thread

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IIRC, I've done it (and it was).
"IIRC" gives me pause for concern. I know you are out of your element when you are not just citing a blog, but come on, its a first hand experience. Take a position. Either it happened or it didn't.
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Old 01-22-2010, 07:45 PM   #2212
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Re: It was the wrong thread

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"IIRC" gives me pause for concern. I know you are out of your element when you are not just citing a blog, but come on, its a first hand experience. Take a position. Either it happened or it didn't.
It was state court, and we definitely did not waive the argument for appeal.
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Old 01-22-2010, 07:54 PM   #2213
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Re: It was the wrong thread

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It was state court, and we definitely did not waive the argument for appeal.
Okay. I feel better now.

Barrel tasting time. Matthews Estate. 2008 claret.
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Old 01-22-2010, 08:48 PM   #2214
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Re: It was the wrong thread

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IIRC, I've done it (and it was).
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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Old 01-22-2010, 09:51 PM   #2215
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Re: It was the wrong thread

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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.
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.
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Old 01-22-2010, 10:00 PM   #2216
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Re: It was the wrong thread

I got Burger's Sugar Cured Bacon the other day and thought, "Mmmm."
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Old 01-22-2010, 10:01 PM   #2217
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Re: It was the wrong thread

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I got Burger's Sugar Cured Bacon the other day and thought, "Mmmm."
i invented giving you bacon
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Old 01-22-2010, 10:33 PM   #2218
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Re: It was the wrong thread

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Heh, the main defense counsel is in my neigborhood--pretty well known as a bigshot. Always nice to see a local guy do bad.
Hey, look at that. I know one of the Weil associates. She's crazy in a work too hard, take things too seriously and accuse co-counsel of stealing your umbrella sort of way. For some reason, it is kind of my hope that it was her screw up (although she really never did me any harm).
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Old 01-23-2010, 12:54 AM   #2219
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Re: It was the wrong thread

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Hey, look at that. I know one of the Weil associates. She's crazy in a work too hard, take things too seriously and accuse co-counsel of stealing your umbrella sort of way. For some reason, it is kind of my hope that it was her screw up (although she really never did me any harm).
I'm sorry, you're going to have to narrow it down a bit more. I guess if I see a female associate with what looks like egg on her face, that's her. Either that, or she had the misfortune to get too close to Hank when he's hopped up on cialis again.
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Old 01-24-2010, 04:33 AM   #2220
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Re: It was the wrong thread

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i invented giving you bacon
Did someone post about Bacon of the Month on here over a year ago?
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