Right back at ya, Judge Davis. That's the message we took away from the 102-page brief (pdf) Microsoft filed Tuesday with the U.S. Court of Appeals for the Federal Circuit, seeking to overturn a $290 million patent infringement judgment entered earlier this month against Microsoft by Tyler, Texas, federal district court Judge Leonard Davis. In his his ruling (pdf), on behalf of a Canadian company called i4i, Davis also entered an injunction against Microsoft -- which prevents it from selling certain versions of Microsoft Word -- and took Microsoft's lead counsel Matt Powers to task for making "improper arguments" at trial.
Well, what the judge can deal out, the trial lawyer can return in spades. In the first line of their preliminary statement, Microsoft's lawyers -- including Powers -- take aim at Davis. "In patent cases, even more than most, the trial judge's role as a gatekeeper is crucial," they write.
Then they provide a long list of Davis' alleged failures in his gatekeeper role. Among other purported missteps, Microsoft's lawyers claim that the judge let in unreliable evidence; allowed the jury to consider a theory of infringement that contradicted the patent's specification; and permitted the inventor of i4i's patent to testify that he had once lied about the date of the patent's conception without corroboration.
As he promised us last week, Powers also addressed Davis' finding that he made improper arguments at trial when he compared i4i to a bank seeking a bailout. Partly because of those arguments, Davis enhanced the jury's award to i4i by $40 million. But Powers and his colleagues assert in the Federal Circuit brief that alleged trial misconduct has traditionally not justified enhanced awards. Further, they write that there was nothing improper about what Powers told the jury about i4i -- because it was true.
"Indeed, when the assertedly 'improper arguments' were made at trial, i4i found no cause to object," Powers and his colleagues write. "Perhaps that is because Microsoft’s argument that i4i and its litigation investors had brought the litigation to achieve liquidity was obviously and inescapably true in light of i4i’s claim for $200 million in damages and the belated request for injunctive relief. ... The district court might not have liked the implications of those facts, but careful examination of the record will show that, contrary to what the out-of-context statements cited by the district court may suggest, Microsoft never argued that simply asserting a patent in these circumstances was improper."
Moreover, Microsoft's brief says, i4i's McKool Smith trial lawyers gave as good as they got when it came to "improper" allusions. "To the extent that i4i also found Microsoft’s allusions to bankers and bailouts unobjectionable," they write, "perhaps it is because, if such an objection were sustained, ordinary application of the goose-gander rule would likewise prohibit i4i from referring to Microsoft as 'by far the biggest software company in the world' and informing the jury of the irrelevant fact that '$200 million represents this tiny fraction of Microsoft's profits.'"
With Powers on the brief for Microsoft are Matthew McGill and Minodora Vancea of Gibson, Dunn & Crutcher; Kevin Kudlac and Amber Rovner of Weil, Gotshal & Manges; and Microsoft in-house lawyer Isabella Fu. "We believe the court erred in its interpretation and application of the law in this case and look forward to the September 23 hearing before the U.S. Court of Appeals," a Microsoft spokesperson said in a statement.
We left a message with i4i appellate attorneys at Finnegan, Henderson, Farabow, Garrett & Dunner, but haven't heard back.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.