Federal Judiciary

Word out - Judge Davis loses one (Nintendo) - wins one (i4i v. Microsoft); Civ Pro Stocking Stuffer

By Michael C. Smith

It's been a busy week for Judge Leonard Davis in Tyler.  Last week while he was busy trying a patent case in Tyler the Federal Circuit sent him a load of coal and sticks by granting a mandamus in the Nintendo case ordering a patent case transferred to Washington state. 

But the judge got a big ol' Walmart gift card from the Fed Circuit today when that court affirmed his actions in the i4i v. Microsoft case, a widely-followed case involving sales of Microsoft's Word software in which Microsoft's appeal contained some fairly strong language taking issue with Judge Davis' sanctioning it for certain conduct during the trial, as well as his substantive rulings.  The Federal Circuit today upheld the $290 million judgment, and then entered an injunction preventing further sale of Word starting January 11, 2010 (so be sure to grab your still-legal copies for the holidays).  I'm sure other patent commentators will have a lot to say, so keep an eye out for what Dennis Crouch (here) and Peter Zura have to say.

This decision is also a stocking-stuffer for your favorite civil procedure or trial practice professor (mine's Gerald Powell at Baylor Law School) because of a failure to preserve a complaint for appeal issue.  The Federal Circuit decided hat it could not review the jury's award of $200 million in reasonable royalty because Microsoft failed to assert a pre-verdict (or Rule 50(a)) motion for judgment as a matter of law on the point.  As FRCP 50 makes clear, a 50(a) motion is a prerequisite to a 50(b) motion after the verdict.  (The rule was loosened in 2006 to eliminate the need to assert the motion repeatedly before a verdict - just once is enough).  See O'Connor's Federal Rules * Civil Trials, p. 622, (really 676 is where you get that sinking feeling when you realize there wasn't a 50(a) motion).  Without that motion the standard of review - as was the case here - precluded the appellate court from reviewing the award under any but the most deferntial possible standard.  Which it mournfully noted kept it from doing things to the award.  (Don't you hate it when that happens?)

Full post as published by Eastern District of Texas Federal Court Practice on December 22, 2009 (boomark / email).