An earlier blog, The End Of a Rule?, dealt with Microsoft’s appeal of an award of TWO HUNDRED MILLION DOLLARS in damages to i4i in a patent infringement case. As we noted, the appellate judges asked questions and made statements which seemed to indicate that they favored Microsoft’s position. Well, the decision is now in. Microsoft lost!
The reader may be wondering what happened. The answer is that Microsoft omitted to timely move for “judgment as a matter of law” (JMOL). In its appeal, Microsoft asked the C.A.F.C. to follow its own recent precedent and hold that the damages award (TWO HUNDRED MILLION DOLLARS) was excessive. The court, however, held that it could not do so because “[a]lthough Microsoft now objects to the size of the damages award, we cannot reach that question because Microsoft did not file a pre-verdict JMOL on damages … Had Microsoft filed a pre-verdict JMOL, it is true that the outcome might have been different.” (A hint if we ever saw one.)
Of course we don’t know why no motion for JMOL was filed. It could be a brilliant tactic which backfired – or a simple screw-up. Whatever the reason, it seems likely that Microsoft’s attorneys are spending a great deal of time explaining it to their client.
THE LESSONS TO BE LEARNED: (a) Some seemingly brilliant tactics may prove not to be so; and (b) trial checklists are always a good idea.