In a rather anticlimactic end, the jury decided to award Microsoft $278,000 in damages from Corel’s infringement. The jury verdict form also asked the jury if the infringement was willful (“yes”) and if there was pre-suit notice of infringement (“no”).
In his recent opinion regarding a Daubert motion on Microsoft’s damages expert, Judge Davila in the Northern District of California contributed to the road map of dos & don’ts for design-around costs and damages in patent infringement matters. The expert was allowed to opine about Corel’s estimated design-around costs; however, the expert was not allowed, instead, to use an estimate of what Microsoft would have spent had it needed to design around its own patented technology. One interesting aspect of this order is that the technical expert and the damages expert appear to have had two different opinions about the design arounds:
We’ll see what the jury decides on this matter in the coming weeks.