Full opinion text
MEMORANDUM OPINION AND ORDER LEONARD DAVIS, District Judge. Before the Court are Microsoft’s motion for judgment as a matter of law (“JMOL”) or motion for new trial (“MNT”) regarding willful infringement (Docket No. 345); i4i, Inc. and i4i, LP’s (collectively “i4i”) motion for enhanced damages and attorneys’ fees (Docket No. 346); Microsoft’s motion for JMOL and MNT regarding indirect infringement (Docket No. 347); Microsoft’s JMOL and MNT regarding noninfringement (Docket No. 348); i4i’s motion for a permanent injunction (Docket Nos. 349 & 364); i4i’s motion for post-verdict damages, prejudgment interest, and post-judgment interest (Docket No. 350); Microsoft’s MNT or remittitur regarding damages (Docket No. 351); Microsoft’s MNT regarding invalidity (Docket No. 353); Microsoft’s JMOL and MNT regarding anticipation and obviousness in light of Rita and DeRose (Docket No. 356); Microsoft’s JMOL and MNT regarding anticipation and obviousness in light of S4 (Docket No. 359); Microsoft’s motion to stay injunctive relief (Docket No. 370); and i4i’s motion to strike (Docket No. 389). For the reasons stated below, i4i’s motion for enhanced damages and attorneys’ fees (Docket No. 346) is GRANTED in part, i4i’s motion for permanent injunction (Docket Nos. 349 & 364) is GRANTED, i4i’s motion for post verdict damages, prejudgment interest, and post-judgment interest (Docket No. 350) is GRANTED, and all other motions are DENIED. Furthermore, this opinion sets forth the Court’s findings of fact and conclusions of law regarding Microsoft’s equitable defenses of laches and inequitable conduct. BACKGROUND The technology in this case focuses on a particular type of electronic documents. Generally, a “document” as manifested in a computer program has two distinct parts: the content (i.e. the text that the user has created in the document) and the structure (the encoding that allows the computer to recognize the meaning of the text). A type of structural information within an electronic document sometimes comes in the form of “metacodes.” Standardized computer languages were developed that utilized metacodes to allow a computer to understand the meaning behind certain text that a user placed in a document. An early example of these languages is the Standard Generalized Markup Language (“SGML”). Later, a markup language was developed called the Extensible Markup Language (“XML”). Asserted U.S. Patent No. 5,787,449 (the “'449 patent”) is entitled “Method and System for Manipulating the Architecture and the Content of a Document Separately from Each Other.” The '449 patented invention created a reliable method of processing and storing content and metacodes separately and distinctly. The data structure primarily responsible for this separation is called a “metacode map.” According to the patent, the “meta-code map” allows a computer to manipulate the structure of a document without reference to the content. Microsoft is the developer of popular word processing and editing software known as Word (“WORD”). Over the years, WORD has had many versions with increasing functionality. In 2003, Microsoft introduced a version of WORD with XML editing capabilities. This functionality continued in the latest version of WORD, “Word 2007.” On March 8, 2007 i4i LP filed this action alleging that Microsoft infringed the '449 patent. A jury trial commenced on May 11, 2009. At trial, i4i contended that Microsoft’s use of certain WORD 2003 and all of WORD 2007 products for processing XML documents with custom XML elements infringed claims 14,18, and 20 of the '449 patent. i4i further argued that Microsoft’s infringement of the patent was willful. Microsoft claimed that its WORD products did not infringe the patent and that the patent was invalid. Following a seven day trial, the jury returned a verdict finding the patent valid and infringed and awarding i4i $200,000,000 in damages. The Court also conducted a bench trial regarding Microsoft’s additional equitable defenses of laches and inequitable conduct. MICROSOFT’S MOTIONS FOR JMOL & NEW TRIAL JMOL Standard “The grant or denial of a motion for judgment as a matter of law is a procedural issue not unique to patent law, reviewed under the law of the regional circuit in which the appeal from the district court would usually lie.” Summit Tech. Inc. v. Nidek Co., 363 F.3d 1219, 1223 (Fed.Cir.2004). In the Fifth Circuit, JMOL may not be granted unless “there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did.” Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir.1995) (internal quotation marks omitted). A court reviews all the evidence in the record and must draw all reasonable inferences in favor of the nonmoving party, however, a court may not make credibility determinations or weigh the evidence, as those are solely functions of the jury. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). New Trial Standard Under Rule 59(a) of the Federal Rules of Civil Procedure, a new trial can be granted to any party to a jury trial on any or all issues “for any reason for which new trials have heretofore been granted in actions at law in courts of the United States.” “A new trial may be granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 612-13 (5th Cir.1985). MICROSOFT’S JMOL & MNT — NO DIRECT INFRINGEMENT Microsoft first moves for JMOL arguing that no reasonable juror could find that its accused WORD products infringed the '449 patent literally or by the doctrine of equivalents. Microsoft’s motion presents three general arguments. First, Microsoft argues that i4i presented no evidence that the accused WORD products created “a data structure” as required by the Court’s construction of the claim term “metacode map.” The Court construed and instructed the jury that “metacode map” and “map of metacodes” in the '449 patent meant “a data structure that contains a plurality of metacodes and their addresses of use corresponding to mapped content.” Claim Construction Opinion, Docket No. Ill at 11. The Court further construed “mapped content” as meaning “the content of a document corresponding to a metacode map.” Id. During trial Dr. Rhyne, one of i4i’s technical experts, explained that the meaning of “a data structure” was “a physical or logical relationship among data elements designed to support specific data manipulation functions.” TT 5/12/09 p.m. at 154:14-16 (citing to the IEEE dictionary). Dr. Rhyne also provided extensive testimony over the physical and logical interrelationships present in the various “data structures” comprising WORD’S XML metacode and content mapping. Id. at 101:21-106:13; Plaintiffs’ Illustrative 1. Furthermore, another of i4i’s technical experts, Dr. Martin, established that various elements within the accused WORD products constituted a single data structure because of their physical and logical interrelationships. See TT 5/13/09 p.m. at 27:22-30:11. Microsoft’s principal argument is that the “data structure” that Dr. Rhyne found in WORD could be broken down into smaller logical “data structures.” See TT 5/13/09 a.m. at 73:2-10. Microsoft argues that since there could be multiple “data structures” found within WORD’S source code, the jury could not find a single “data structure” that “contained a plurality of metacodes and their addresses of use.” However, Microsoft’s technical expert conceded during trial that Microsoft had urged at the Court’s claim construction hearing that a “data structure” was “a collection of pieces of data that are organized in a particular way ... [and] can be stored in numerous different places.” TT 5/19/09 a.m. at 23:17-24:25. Further, Microsoft’s motion does not identify or request any alternative definition of “data structure.” Microsoft even concedes that the multiple “data structures” that it identified during Dr. Rhyne’s cross examination could be broken down even further. Id. Though Microsoft makes broad statements suggesting that the “view of ‘data structure’ urged by Dr. Rhyne is inconsistent with the teachings of the patent,” its argument reduces to a mere disagreement with the jury verdict. See Microsoft’s Motion, Docket No. 348 at 12. The jury was called upon to decide whether WORD met the Court’s definition of “metacode map.” Without asserting that i4i exceeded the scope of the Court’s definition, or suggesting that the Court’s definition is erroneous, Microsoft now contends, after the verdict, that a “metacode map” requires the logically smallest subdivision of a data structure to contain “a plurality of metacodes and their addresses of use.” “[L]itigants waive their right to present new claim construction disputes if they are raised for the first time after trial.” Conoco, Inc. v. Energy & Envtl. Int’l, L.C., 460 F.3d 1349, 1359 (Fed.Cir.2006). As Microsoft has never suggested a definition of “metacode map” that limits a “data structure” to its logically smallest subdivision, its argument is waived. Furthermore, as recounted above, i4i presented legally sufficient evidence for the jury to conclude that the WORD products contained a “data structure” within the Court’s definition of “metacode map.” In the alternative to literal infringement, i4i alleged that the accused WORD products met the “metacode map” claim limitation by the doctrine of equivalents. Essentially, i4i argued that even supposing the jury viewed the “data structure” within the WORD products to be several “data structures,” the products still infringed by equivalence. Microsoft additionally argues that i4i failed to present legally sufficient evidence of infringement by the doctrine of equivalents because Dr. Rhyne’s testimony was incredible and conclusory. After a review of the record, i4i clearly presented sufficient testimony based on credible expert analysis that the accused WORD products contained a “metacode map” equivalent to that described in the asserted claims of the '449 patent. See, e.g., 5/12/09 p.m. 161:7-11 (explaining the doctrine of equivalents standard), 161:1 (explaining that differences between multiple data structures and “a data structure” are insubstantial), 161:15-162:9 (explaining that several data structures with logical relationships among them are considered a single data structure to those skilled in the art). Thus, Microsoft’s arguments regarding the “metacode map” claim limitation are rejected. Second, Microsoft contends that i4i presented legally insufficient evidence that the accused WORD products contained “metacodes” as required by the claims. The Court defined “metacode” as “an individual instruction which controls the interpretation of the content of the data.” As background, it is undisputed that markup languages (such as XML) generally use “tags” to denote the use of a metacode. TT 5/13/09 a.m. at 44-48. These “tags” contain a code that describes the content (such as “memberid” to describe to the computer that the content between the tags is a “member ID number”). The “tags” also contain characters (such as “<” and “>”) called delimiters. Id. at 47:8-11. These characters are generally used to indicate to the computer that content has ended and what follows is a description of the content. Id. For example, a “tag” along with content would generally take the form of “<memberid> 12345</mem-berid>.” It is undisputed that the codes in the accused WORD products do not contain delimiters. Again, Microsoft argues, after the verdict, that the Court’s claim construction requires that “metacodes” contain delimiters. This argument is a direct extension of the claim construction position that Microsoft raised during the Court’s claim construction hearing and was expressly rejected. Compare Microsoft’s Motion, Docket No. 348 at 14 (arguing that the definition of metacodes should include the phrase “i.e., it differentiates content”) with Claim Construction Opinion, Docket No. Ill at 5 (expressly rejecting the addition of the phrase “i.e., it differentiates content” as unnecessarily limiting the claims). Despite this express rejection, Microsoft vigorously cross-examined Dr. Rhyne concerning the absence of delimiters in Microsoft’s accused products. Again during closing arguments Microsoft essentially argued that the Court’s construction required delimiters. See TT 5/13/09 a.m. at 44-48; TT 5/20/09 at 52-58. For the same reasons provided for in the Court’s claim construction opinion, the definition of “metacode” is simply “an individual instruction which controls the interpretation of content.” Given the Court’s construction of “metacode,” i4i clearly presented legally sufficient evidence to show that the “codes” contained within the accused WORD products met the claim limitation. Dr. Rhyne explained, consistent with the Court’s definition of “metacodes,” that a “tag” was not necessarily a “metacode” as defined in the '449 patent. See, e.g., TT 5/13/09 a.m. at 46:2-6, 47:2-4. He further explained why delimiters were not neeessarily included within the Court’s definition and why the accused WORD products fit within the claim limitation. See, e.g., TT 5/13/09 a.m. at 47:4-7; TT 5/12/09 p.m. at 149:8-11. Furthermore, any argument that “metacode” should have been defined to expressly include delimiters has never been specifically raised with the Court and is therefore waived. As a result, Microsoft’s arguments regarding the “metacode” claim limitation are rejected. Finally, Microsoft argues that a new trial is warranted because the Court incorrectly construed several terms in its claim construction opinion including “distinct map storage means,” “mapped content storage means,” and “mapped content storage.” The Court has thoroughly explained the rationale behind its constructions of those terms and has previously rejected Microsoft’s proposed definitions. See Claim Construction Opinion, Docket No. 111. Microsoft’s arguments are again rejected for the reasons expressed in the Court’s claim construction opinion. In accordance with the aforementioned reasoning, Microsoft’s motion for JMOL and new trial regarding direct infringement and infringement by the doctrine of equivalents of claims 14, 18, and 20 of the '449 patent is denied. MICROSOFT’S JMOL & MNT — NO INDIRECT INFRINGEMENT Microsoft next moves for JMOL and a new trial with regard to i4i’s claims of contributory and induced infringement. Infringement is a question of fact that is reviewed for substantial evidence when tried to a jury. Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1332 (Fed.Cir.2008). A cause of action for contributory infringement flows from 35 U.S.C. § 271(c). That section provides: Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer. 35 U.S.C. § 271(c). Induced infringement is a separate cause of action from contributory infringement. “In order to prevail on an inducement claim, the patentee must establish first that there has been direct infringement, and second that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another’s infringement.” ACCO Brands, Inc. v. ABA Locks Mfr. Co., 501 F.3d 1307, 1312 (Fed.Cir.2007) (internal quotation marks omitted). “[I]nducement requires evidence of culpable conduct, directed to encouraging another’s infringement, not merely that the inducer had knowledge of the direct infringer’s activities.” Id. at 1306. Furthermore, “[t]he plaintiff has the burden of showing that the alleged infringer’s actions induced infringing acts and that he knew or should have known his actions would induce actual infringements.” DSU Med. Corp. v. JMS Co., 471 F.3d 1293 (Fed.Cir.2006) (quoting Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 553 (Fed.Cir.1990)). Both forms of indirect infringement require the plaintiff to prove corresponding acts of direct infringement. See DSU Med. Corp., 471 F.3d at 1303. Importantly however, a patentee may prove both indirect infringement and the corresponding direct infringement by circumstantial evidence. See Liquid Dynamics Corp. v. Vaughan Co., 449 F.3d 1209, 1219 (Fed.Cir.2006). “There is no requirement that direct evidence be introduced, nor is a jury’s preference for circumstantial evidence over direct evidence unreasonable per se.” Id. Moreover, “[t]he drawing of inferences, particularly in respect of an intent-implicating question ... is peculiarly within the province of the fact finder that observed the witnesses.” Rolls-Royce Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1110 (Fed.Cir.1986); see also Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1378 (Fed.Cir.2005) (declining to disturb jury’s verdict because intent to induce infringement “is a factual determination particularly within the province of the trier of fact”). Regarding contributory infringement, Microsoft presents three arguments wherein it asserts that i4i failed to present sufficient evidence on certain elements of contributory infringement. First, it asserts that i4i failed to produce legally sufficient evidence that Microsoft knew that WORD was both “patented and infringing.” See Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964). The Federal Circuit has commented that the required showing of mental state for indirect infringement is “minimal.” See DSU Med. Corp., 471 F.3d at 1303. Microsoft’s argument seems to imply that i4i was required to show direct evidence that its infringing product was both patented and infringing. However, as noted above, legally sufficient evidence can be composed of either direct or circumstantial evidence. i4i presented evidence that Microsoft was provided with an explanation of i4i’s patented technology along with the patent number starting in April 2001 and continuing through 2003. See, e.g., TT 5/12/09 a.m. at 79:20-81:22, 79:5-9, 82:4-11,138:9-140:22; PX 13; TT 5/15/09 p.m. at 5:16-8:1; TT 5/12/09 a.m. at 8:7-9:22; PX 19; PX 39; PX 16; PX 23; TT 5/13/09 a.m. at 16:5-18:18; PX 49. i4i even presented an internal Microsoft email from January of 2003 containing i4i’s product name, the patent number, and a statement from a Microsoft employee that i4i’s technology would be made “obsolete” by the accused WORD product (which admittedly added XML functionality to the previous version of Microsoft’s WORD product). PX 49. Viewing the evidence in the light most favorable to the jury and drawing all inferences in favor of i4i, there is legally sufficient evidence to support the conclusion that Microsoft knew that its WORD products containing XML functionality would infringe the '449 patent if used by its customers. Second, Microsoft contends that i4i failed to present legally sufficient evidence that WORD’S XML feature did not have a substantial non-infringing use. At trial, the parties’ experts agreed that the XML feature in the accused WORD products could be used in three non-infringing ways: first, opening a file containing custom XML elements in a “.doc” format (the “binary format” use); second, opening a “.xml” file containing custom XML elements but no content (the “no content” use); finally, creating a blank document, associating a schema definition file, adding custom XML elements using the XML structure pane of WORD’S graphical user interface (“GUI”), adding content using WORD’S GUI, then saving the file in the “.xml,” “.doc,” “.docx,” “.rtf,” “.html,” or “.docm” file formats without reopening the document (the “mere creation” use). See TT 5/13/09 a.m. at 29, 117-123. The parties vigorously disputed whether any of these uses was “a substantial non-infringing use.” Microsoft argues that i4i’s evidence only amounts to an explanation of why the accused uses were “substantial” and that i4i presented no evidence that the uses mentioned above are not “substantial non-infringing uses.” A “substantial” use of an accused feature is one that is not occasional, farfetched, impractical, experimental, or hypothetical. See, e.g., Hoffmann-La Roche, Inc. v. Promega Corp., 33 U.S.P.Q.2d 1641, 1648 (N.D.Cal.1994) (“Whether a use is ‘substantial’ or not depends on how likely and often the use will occur. Thus, occasional aberrant use of a product does not make that use ‘substantial.’ Similarly, inefficient and uneconomieal uses are less likely to be deemed ‘substantial.’”). i4i’s infringement expert, Dr. Rhyne, testified that the “binary format” use involves saving an XML document in a proprietary Microsoft format as opposed to a non-proprietary format, such as “.xml,” readable by other applications. TT 5/13/09 a.m. at 30:24-31:3, 140:6-15. In Dr. Rhyne’s opinion, the essential advantages of XML (i.e. the ability of other applications to search documents identifying the “meaning” behind content) were subverted by saving the documents in a format readable only by Microsoft products. See id.; TT 5/13/09 a.m. at 28:11-24. Thus, he opined, that such a use was impractical given the purpose of custom XML. Likewise, Dr. Rhyne explained that the “no content” use involved creating a form using custom XML tags, but never using that form by adding content. TT 5/13/09 a.m. at 140:21-141:8. He testified that such a use would not be substantial considering that XML documents (especially forms) are designed to enable a user to add content to the document. See id. at 141:4-9, 29:4-9, 34:4-6, 121:9-11. Finally, Dr. Rhyne opined that the mere creation use involved creating an XML document and never reopening it. Id. at 33:16-21. In his opinion, a WORD document is designed to be opened and saved repeatedly. Id. at 33:22-34:1. Thus, a use where a document is merely created and never reopened was insubstantial. Id. at 33:16-21. Dr. Rhyne is not required to opine over the number of people actually using WORD in non-infringing ways in order to prove “insubstantiality.” Rather, Dr. Rhyne’s testimony focusing on the impracticality of using custom XML given the purpose of the invention is both relevant and probative to “substantiality.” Thus, while Microsoft points to contradictory testimony by its expert explaining that these uses are “substantial,” the jury was presented with legally sufficient evidence to conclude that Microsoft’s proposed non-infringing uses were insubstantial. Finally, Microsoft argues that no reasonable juror could find that Microsoft “sold” or “offered for sale” any product within the scope of § 271(c). Microsoft’s essentially legal argument is that no software could form the basis of contributory infringement because i4i only asserted “process” claims during trial. However, Microsoft failed to raise this argument before the case was submitted to the jury. None of Microsoft’s other objections or requests prior to submission of this case to the jury addressed the issue of whether i4i was required prove the sale of something tangible used in the infringing processes. Furthermore, Microsoft did not object to the Court’s jury instructions on these grounds or request a particular instruction addressing this very specific issue. See Joint Proposed Instructions, Docket No. 320-2 at 30-32. As a result, Microsoft’s JMOL on this issue is waived. See Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir.2001) (“If a party fails to move for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) on an issue at the conclusion of all the evidence, that party waives both its right to file a renewed post-verdict Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on that issue on appeal.”). Regarding i4i’s claims of induced infringement, Microsoft again asserts that i4i presented insufficient evidence to show that Microsoft had the specific intent to induce infringement. As was the case for contributory infringement, circumstantial evidence that Microsoft knew of the patent number, in connection with an in-depth knowledge of i4i’s products, along with statements that WORD would render i4i’s products “obsolete,” provides a legally sufficient basis for the jury to conclude that the intent requirement for inducement was satisfied. Additionally, Microsoft asserts that a survey conducted by one of i4i’s damages experts (the “Wecker survey”) was an insufficient evidentiary basis for proving the “direct infringement” elements of the indirect infringement causes of action. As explained elsewhere in this opinion, the Wecker survey passes the legally required threshold level of reliability and was qualified to be relied upon by the jury. Microsoft also moves for a new trial based on alleged errors in the jury instructions for both contributory and induced infringement. Microsoft argues that the Court’s instruction that Microsoft could be held liable for induced infringement if it “intended to cause acts that constitute infringement” was erroneous. Microsoft’s proposed instruction required a specific intent to cause infringement. However, the very next sentence in the Court’s charge instructs the jury that they “must find specifically that the inducer intended to cause the acts that constitute the direct infringement and must have known or should have known that its action would cause the direct infringement.” Court’s Charge, Docket No. 323 at 12. The instruction specifically tracked the language in DSU Medical Corp. v. JMS Company and properly instructed the jury regarding the mental state requirements of inducement. 471 F.3d 1293 (Fed.Cir.2006). Microsoft’s argument is overruled. Microsoft finally argues that the Court improperly instructed the jury regarding contributory infringement. It argues that the Court improperly instructed the jury that Microsoft could be found liable for contributory infringement if the jury found that it sold “a material component for use in practicing the patented method.” Court’s Charge, Docket No. 323 at 13. Microsoft submitted an instruction that required a “material or apparatus” to be sold, rather than a software component. This argument has been foreclosed by the Federal Circuit’s Ricoh decision. 550 F.3d at 1340 (reversing district court’s granting of summary judgment because there was a “material issue of fact [over] whether [the defendant’s] optical disc drives contain hardware or software components that have no substantial noninfringing use other than to practice [the plaintiffs] claimed methods”). The Court’s instruction was correct. Accordingly, as all of Microsoft’s arguments have been rejected, its motion is denied. MICROSOFT’S JMOL & MNT — NO WILLFULNESS Microsoft next moves for JMOL on the jury finding that it willfully infringed the '978 patent. To prevail on a charge of willful infringement, the patentee must show the accused infringer acted with objective recklessness. In re Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed.Cir.2007). First, the patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions infringed a valid patent. Id. The accused infringer’s state of mind is irrelevant to this objective inquiry. Id. If the patentee meets this threshold objective standard, the patentee must further demonstrate that the accused infringer knew or should have known of this objectively high risk. Id. Whether infringement is willful is a question of fact and reviewed for substantial evidence. Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1359 (Fed.Cir.2004). Initially, Microsoft’s arguments are premised on an overly broad reading of Seagate. It argues that the objective prong of the willfulness analysis is met if and only if a defendant failed to present valid defenses during the infringement proceedings. For instance, Microsoft asserts that the very fact that pretrial summary judgment was granted on certain asserted claims of the '449 patent, i4i voluntarily dismissed other claims, and Microsoft asserted defenses at trial (including its equitable defenses) bars it entirely from willfulness liability. In support of this expansive view of the “objective” prong of willfulness, Microsoft heavily relies on Black & Decker, Inc. v. Robert Bosch Tool Corp., 260 Fed.Appx. 284 (Fed.Cir.2008). First and foremost, the issue of whether all defenses presented throughout an infringement proceeding could foreclose a willfulness finding as a matter of law was not before the court in Black & Decker. See id. at 291 (“In light of our disposition of the claim construction issue on appeal, and consequent vacating of the infringement verdict, the issue of willful infringement becomes moot.”). Second, the case is distinguishable. There, the jury found several asserted claims invalid and the Federal Circuit reversed the infringement verdict on the remaining claims. See id. Here, the sum of the jury’s findings along with the size of the verdict indicate that Microsoft’s arguments regarding the asserted claims at trial were rejected wholesale. Finally, and most disturbingly, Microsoft’s arguments invite the Court to adopt a view of willful infringement that would allow an accused infringer to stay willfully ignorant despite a high likelihood that its actions infringe a valid patent. Such a view would allow an infringer to escape a finding of willfulness regardless of its conduct at the time the infringement began as long as it presented many defenses after a formal action was filed. Such a view is inconsistent with both Seagate and generally accepted legal principals regarding “objective” legal analysis. Traditionally and overwhelmingly, “objective” tests focus on the facts and circumstances available to an actor at the time that the action under scrutiny was taken. See e.g., Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (“Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time .... ” ”); Carmichael v. United States, 298 F.3d 1367, 1372 (Fed.Cir.2002) (“In applying this test, duress or coercion is measured by an objective evaluation of all the facts and circumstances.”); Grawey v. Drury, 567 F.3d 302, 310 (6th Cir.2009) (“In determining whether an excessive force constitutional violation occurred, we must look at the objective reasonableness of the defendant’s conduct, which depends on the facts and circumstances of each case viewed from the perspective of a reasonable officer on the scene and not with 20/20 hindsight.”). The Federal Circuit’s discussion in Sea-gate bolsters this view of “objective” analysis. There, the court distinguished a “reckless” standard for willfulness with one that would require only “negligence.” See In re Seagate, 497 F.3d at 1370. To that end, the Federal Circuit overruled the standard announced in Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389-90 (Fed.Cir.1983), requiring a willfulness finding when an accused infringer failed to investigate a patent owner’s rights prior to acting. The new “recklessness” standard, repeated above, adopted by the Seagate court was taken from a general accepted meaning of the term in civil law. See In re Seagate, 497 F.3d at 1370. Thus, the “objective” prong of the Seagate standard focuses on an “objective” view of the facts and circumstances surrounding an accused infringer at the time that it acts. As a consequence, the number of creative defenses that Microsoft is able to muster in an infringement action after years of litigation and substantial discovery is irrelevant to the objective prong of the Seagate analysis. Rather, the correct analysis focuses on whether, given the facts and circumstances prior to Microsoft’s infringing actions, a reasonable person would have appreciated a high likelihood that acting would infringe a valid patent. See id.; Restatement (Second) of Torts § 500, comment b (1965) (“Conduct cannot be in reckless disregard of the safety of others unless the act or omission is itself intended, notwithstanding that the actor knows of facts which would lead any reasonable man to realize the extreme risk to which it subjects the safety of others.”) (emphasis added). The subjective prong of the analysis then focuses on whether Microsoft knew or should have known of that likelihood. Given these principles, Microsoft’s arguments must be rejected. First, Microsoft argues that the facts that 1) this Court granted summary judgment invalidating certain claims of the '449 patent; 2) it asserted defenses to the remaining claims of the '449 patent; and 3) i4i voluntarily dismissed certain accused products before trial, entitles it to JMOL regarding willfulness. As Microsoft does not argue (and did not argue to the jury) that any of these “defenses” would have been apparent and considered by a reasonable person in Microsoft’s position prior to its infringing activity, these arguments are irrelevant and inappropriate. Furthermore, the pretrial summary judgment and i4i’s voluntary dismissal of accused products are irrelevant to the remaining claims that the jury found were valid and the remaining products that the jury found were willfully infringing. Additionally, Microsoft’s remaining defenses of invalidity were rejected by the jury and i4i presented sufficient evidence to support its infringement and validity positions. Second, Microsoft argues that i4i presented insufficient evidence under the subjective prong of Seagate. Microsoft effectively argues that anything short of a “cease-and-desist” letter would be ineffective to put it on notice of an objective risk of infringement. In fact, i4i presented sufficient evidence, both direct and circumstantial, that Microsoft was aware of the likelihood that its activities were infringing. See, e.g., 5/12/09 a.m. at 76-80, 130-40; PX 19; PX 20; PX 13; PX 39; PX 103; PX 49; PX 100. Finally, Microsoft asserts three bases for which a new trial should be granted. First, it argues that the Court erred in rejecting a “curative instruction” regarding wilfulness. The instruction that Microsoft proposed was that “[njotice of another’s ownership of a patent does not give rise to a duty to investigate that patent.” Docket No. 320-2 at p. 37. Microsoft analogizes the Court’s rejection of this instruction with the improper instruction given in Voda v. Cordis Corp., 536 F.3d 1311, 1327-28 (Fed.Cir.2008). There, the Federal Circuit rejected an argument that the district court’s instruction applying an affirmative duty to investigate to the willfulness analysis was “harmless.” Id. Here, no affirmative duty of care was insinuated in the Court’s willfulness instruction. The instruction given tracked the language of Seagate, and Microsoft does not point to any language in the Court’s instruction that was improper. Microsoft’s proposed instruction was cumulative of the specific language defining the willfulness standard in Seagate and was properly rejected. Microsoft also argues it is entitled to a new trial because the Court improperly excluded evidence relevant only to its equitable defenses from the jury. The Court took no such action. In ruling on Microsoft’s motion in limine regarding this issue, the Court instructed Microsoft that the relevance of its evidence on equitable issues would be determined on a case-by-case basis. Pretrial Hearing Transcript 5/7/09 at 16-17. In addition, as i4i points out, Microsoft actually presented evidence regarding its equitable defenses during trial. See, e.g., TT 5/15/09 p.m. at 39, 43-44; 5/18/09 p.m. at 59-74. Microsoft never sought to introduce other evidence regarding its equitable defenses during trial and no offer of proof in this regard was ever made. As the Court did not exclude any of Microsoft’s evidence, any objection to its purported exclusion has been waived. Finally, Microsoft argues that it is entitled to a new trial because the Court excluded evidence of reexamination of the '449 patent. Microsoft’s arguments are meritless. As explained elsewhere in this opinion, the simple fact that a reexamination decision has been made by the PTO is not evidence probative of any element regarding any claim of invalidity. Procter & Gamble Co. v. Kraft Foods Global, Inc., 549 F.3d 842, 848 (Fed.Cir.2008). Even if it were, the evidence was substantially more prejudicial than probative. Fed.R.Evid. 403. Accordingly, as all of Microsoft’s arguments have been rejected, its motion is denied. MICROSOFT’S JMOLS & MNTS — OBVIOUSNESS AND ANTICIPATION In three separate motions, Microsoft argues that it is entitled to JMOL or a new trial on the issues of anticipation and obviousness. The motions involve six instances of prior art, and Microsoft forwards various arguments concerning how the prior art either anticipates the '449 patent or renders the invention obvious. Specifically, Microsoft moves for 1) JMOL arguing that the Rita SGML editor (“Rita”) in combination with U.S. Patent No. 5,587,-902 (“Kugimiya”) renders the '449 patent obvious; 2) JMOL arguing that U.S. Patent No. 6,101,512 (“DeRose”) in combination with Kugimiya renders the '449 patent obvious; 3) a new trial arguing that Rita and DeRose anticipate the '449 patent or render it obvious when combined with Kugimiya; 4) a new trial arguing that Microsoft’s MacWord 5 and WORD 6 products both anticipate the '449 patent; 5) JMOL or a new trial arguing that Semi’s S4 (“S4”) product anticipates the '449 patent or renders it obvious in combination with Kugimiya; 6) a new trial on the basis that the Court improperly instructed the jury with regard to Microsoft’s burden of proof on its invalidity defenses; and 7) a new trial on the basis that the Court improperly excluded evidence that the '449 patent was under reexamination by the Patent and Trademark Office (“PTO”). The invalidity arguments regarding the six prior art references are either based on the premise that there is no genuine issue of material fact regarding invalidity (in the case of the JMOL motions) or that the verdict is against the great weight of the evidence (in the case of the motions for new trial). Microsoft never moved for summary judgment on any of these invalidity arguments. Additionally, Microsoft only moved for a pre-verdict JMOL regarding the S4 reference. TT 5/19/09 p.m. at 6-8 (“The second motion is for invalidity based on the SEMI S4 system. We believe the evidence presented establishes conclusively that it was sold more than a year before and that it embodied the patented invention.”). Fed. R. Civ. P. 50(b); Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1108 (Fed.Cir.2003). Microsoft’s trial arguments regarding S4 rested on a very specific theory of invalidity, and its motion for JMOL mentioned only anticipation. While, Microsoft’s JMOL as to S4 was sufficient to preserve its right to a post-verdict JMOL regarding that specific prior art reference, it was insufficient to put either this Court or i4i on notice that Microsoft intended to challenge the sufficiency of the evidence with regard to its other theories of invalidity. See id. at 1107 (noting that pre-verdict JMOL regarding a specific on-sale bar theory of invalidity was insufficient to preserve a post-verdict JMOL regarding obviousness because various theories of anticipation and obviousness require different elements of proof). Consequentially, Microsoft never challenged the sufficiency of i4i’s evidence in opposition to its anticipation and obviousness defenses based on Rita, DeRose, or Kugimiya (including the combination of S4 and Kugimiya) before the verdict. It has waived its right to a post-verdict JMOL on those references. However, regarding S4, Microsoft preserved its right and does move for post verdict JMOL on the issue of anticipation. In order to show that it is entitled to JMOL on its affirmative defense of invalidity Microsoft is required to prove the essential elements of that defense to a virtual certainty. Bank Of La. v. Aetna U.S. Healthcare Inc., 468 F.3d 237, 241 (5th Cir.2006) (“For a defendant to obtain summary judgment on an affirmative defense, it must establish beyond dispute all of the defense’s essential elements.”). During trial, Microsoft sought to prove that S4 violated the on-sale bar of 35 U.S.C. § 102(b). In order to prove anticipation by the on-sale bar, a defendant must show by clear and convincing evidence that (1) the invention was the subject of a commercial sale or offer for sale and (2) the invention was “ready for patenting” at the time of the offer or sale. Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 67, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). The defendant must further show that both prongs occurred before the critical date. It is undisputed that the inventors of the '449 patent, Mr. Vulpe and Mr. Owens, sold the S4 system in the United States prior to the June 2, 1993 critical date. The main issue of contention during trial was whether the S4 system practiced the claims of the '449 patent. While Microsoft did present evidence on this issue, i4i also presented evidence either directly contradicting or discrediting Microsoft’s evidence. Mr. Vulpe and Mr. Owens both testified that the invention embodied in the '449 patent was only conceived of slightly before the patent application was filed and well after the critical date. TT 5/11/09 p.m. at 111:10-115-12; TT 5/15/09 a.m. at 118:7-120:15; see also PX 594; PX 595; PX 627. Furthermore, the inventors testified that the S4 system that was sold prior to the critical date never implemented the invention contained in the patent. TT 5/11/09 p.m. at 109-110, 152-54; TT 5/15/09 p.m. at 87:23-88:5. In specifically explaining how the S4 system operated, Mr. Owens testified that S4 did not to contain a “metacode map” as required by the '449 patented claims. TT 5/11/09 p.m. at 152:14-153:15. The other co-inventor, Mr. Vulpe, testified similarly. TT 5/15/09 at 90:20-22. Finally, i4i presented expert testimony, through Dr. Rhyne, that it was impossible to directly compare S4’s operation with the claims of the '449 patent because S4’s source code is unavailable. TT 5/19/09 p.m. at 51-54. Dr. Rhyne further attacked the opinion of Microsoft’s technical expert, Mr. Gray, because Mr. Gray rendered an opinion regarding S4’s anticipatory ability without reviewing the program’s source code. Id. Microsoft seems to suggest that it is i4i’s burden to present corroborating documentation for nearly every statement made by Mr. Vulpe and Mr. Owens. Simply because Microsoft chooses to base its anticipation defense on prior art created by the inventors of the patent-in-suit does not shift a burden onto those inventors to prove both the conception date of the patented invention and to disprove that the prior art anticipated. Cf. Shu-Hui Chen v. Bouchard, 347 F.3d 1299, 1309 (Fed.Cir.2003) (“It is well established that when a party seeks to prove conception via the oral testimony of a putative inventor, the party must proffer evidence corroborating that testimony.”) (emphasis added). The burden remained on Microsoft to prove invalidity by clear and convincing evidence. i4i’s expert testimony attacking Mr. Gray’s opinion as to anticipation and Mr. Owen’s testimony that S4 did not practice the invention embodied in the '449 patent was legally sufficient to rebut Microsoft’s case of anticipation. The remainder of Microsoft’s arguments urge that the testimony of Mr. Vulpe and Mr. Owens is incredible and “self-serving.” These arguments are improper considering that the Court “may not make credibility determinations or weigh the evidence” when deciding a motion for JMOL. Thompson v. Connick, 553 F.3d 836, 851 (5th Cir.2008). Furthermore, even if the Court were to weigh the evidence, Dr. Rhyne’s testimony that no one could assess whether S4 met the claims of the '449 patent without the relevant source code was compelling. Mr. Gray’s testimony regarding S4’s ability to meet the '449 claim limitations failed to approach the specificity or detail that was applied by the parties to the infringing WORD products or the other prior art. Compare TT 5/18/09 p.m. at 163:4-173:13 with TT 5/18/09 p.m. at 91:20-92:16. In sum, there was a sufficient evidentiary basis for the jury to disbelieve that S4 embodied the '449 patented invention. As this was an essential element of Microsoft’s claim of anticipation, there was legally sufficient evidence for the jury to find that S4 did not anticipate the '449 patent. Additionally, because the jury’s verdict is also not against the great weight of the evidence, Microsoft’s motion for new trial regarding S4’s anticipation is denied. Further, with regard to anticipatory pri- or art under § 102, Microsoft argued to the jury that its own products, MacWord 5 and WORD 6, anticipated the claims of the '449 patent. Microsoft now argues that the jury’s verdict necessarily rejecting this argument was against the great weight of the evidence. It is undisputed that Mac-Word 5 and WORD 6 were both sold prior to the critical date. The parties’ dispute centered around whether a feature generally referred to as “bookmarks” and its underlying data structure within MacWord 5 and WORD 6 constituted “metacodes” and a “metacode map” as defined by the Court. As mentioned above, the Court defined “metacode” as “an individual instruction which controls the interpretation of the content of the data” and “metacode map” as “a data structure that contains a plurality of metacodes and their addresses of use corresponding to a mapped content.” Microsoft’s technical expert, Mr. Gray, testified that the bookmark was both a meta-code and that the data structure supporting a bookmark constituted a “metacode map” as required by the claims of the '449 patent. TT 5/18/09 p.m. at 124-5, 127-30, 132-36; TT 5/18/09 a.m. at 111-12. In substance, Microsoft argues that Mr. Gray’s testimony shifted the burden to i4i to prove that the prior art WORD products and the accused products were materially different. Even if this were the case, i4i presented evidence that the vast majority of “data structures” contained within the infringing products are not contained within Mac-Word 5 and WORD 6. TT 5/18/09 a.m. at 109:1-110:6; Defendant’s Illustrative 4. Dr. Rhyne also explained how the lack of these additional data structures in the pri- or art versions of WORD failed to create “metacodes” or “metacode maps” as required by the claims of the '449 patent. TT 5/19/09 p.m. at 49:5-51:1. In fact, i4i introduced evidence that Microsoft’s own computer dictionary defined “bookmarks” as “a marker inserted in a specific point in a document to which the user may wish to return for later reference.” Id.; PX 526. This definition is far from the Court’s claim construction definition of “meta-codes.” i4i further presented circumstantial evidence that “bookmarks” did not support the functionality defined by the '449 patent. Microsoft’s WORD 2003 Development Lead, Robert Little, testified that “bookmarks” were considered by the development team as a structure for implementing XML but concluded that “the bookmark approach would be too fragile.” See TT 5/18/09 p.m. at 27:20-28:2. Furthermore, i4i presented a host of evidence showing that the functionality embodied within the accused WORD products was not contained in any prior versions of WORD. See, e.g., PX 270 at MSÍ4Í00299587 (“I don’t think we have any ideas how to do [custom XML] for Word”); PX 44 at MS-Í4Í00299478 (identifying custom XML within Word 2003 as a “new technology”); PX 45 at MS-Í4Í00299583 (“[a]n XML authoring tool would be a logical new product for Microsoft. If Word was to morph in an XML direction, that would refresh that product and provide one more reason for users to upgrade.”). The jury was free to disbelieve Mr. Gray’s expert testimony, and there existed contrary testimony by Dr. Rhyne for the jury to conclude that MacWord 5 and WORD 6 did not meet the “metacode” and “metacode map” limitations of the '449 patent. In sum, the jury’s finding was not without support and certainly not against the great weight of the evidence. Microsoft further moves for a new trial arguing that the jury’s finding that Rita and DeRose did not anticipate the claims of the '449 patent was against the great weight of the evidence. Rita is a software application enabling users to create and edit documents using “tags” such as SGML documents. DX 2075. The DeRose patent discloses a system for generating, analyzing, and navigating electronic documents containing markup, such as SGML. DX 2179. With regard to Rita, i4i contested that the software application was sold before the critical date. Microsoft produced evidence that a single sale of a computer program called “Rita SGML editor” was sold in 1989. See DX 2080. Microsoft also presented evidence that there existed several publications discussing the operation of a computer called the “Rita SGML editor.” See DX 2075, DX 2076, DX 2077, DX 2078, DX 2079. In fact, Mr. Gray’s testimony regarding Rita’s anticipation was based on an amalgam of the Rita source code and the papers written about the Rita program. See TT 5/18/09 p.m. at 143:17-24 (explaining Mr. Gray based his opinion on the source code and the publications). Dr. Rhyne testified however that Microsoft’s invalidity analysis was based upon a later version of the Rita program than the one sold in 1989. See TT 5/19/09 p.m. at 46:6-16. Further, the Rita source code itself shows dates where the code was modified after the single sale occurred. Id.; PX 298. Dr. Rhyne concluded that, based upon the evidence, it was impossible to know the characteristics of the Rita program as sold in 1989 or which particular version of Rita was described in the publications. TT 5/19/09 p.m. at 46:11-14. In order for a claim to be anticipated, every limitation must be found in a single prior art reference. Planet Bingo, LLC v. GameTech Int’l, Inc., 472 F.3d 1338, 1346 (Fed.Cir.2006). i4i presented enough evidence to cast doubt on whether any single “Rita” prior art reference contained each and every claim limitation. Furthermore, i4i presented evidence (assuming the amalgam of Rita references were a single prior art reference) that neither Rita or DeRose taught or practiced the “mapped content,” “metacode map,” or “address of use” limitations of the '449 claims. The issue properly submitted to the jury was whether a data structure known as a “tree structure” disclosed in Rita and DeRose could meet the Court’s definitions of “mapped content,” “metacode map,” or “address of use.” i4i presented voluminous testimony regarding this issue. See, e.g., TT 5/19/09 p.m. 35:2-5, 35-47. Microsoft presented contrary evidence. TT 5/18/09 p.m. at 144-160. Ultimately, there was conflicting testimony regarding this precise issue and the determination fell upon the credibility of the parties’ expert analysis. The jury’s determination that Rita and DeRose did not meet all the limitations of claims 14, 18, and 20 of the '449 patent was not against the great weight of the evidence. Microsoft further moves for a new trial because the great weight of the evidence supports its argument that the Rita, DeRose, and S4 references render the '449 patent obvious when combined with Kugimiya. Obviousness is ultimately a question of law, based on underlying factual determinations. Altana Pharma AG v. Teva Pharms. USA, Inc., 566 F.3d 999, 1007 (Fed.Cir.2009). “The factual determinations that form the basis of the legal conclusion of obviousness include (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) evidence of secondary factors, known as objective indicia of non-obviousness.” Id. Secondary considerations include commercial success, long felt but unresolved needs, and failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). “Evidence of secondary considerations ... are but a part of the ‘totality of the evidence’ that is used to reach the ultimate conclusion of obviousness.” Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483 (Fed.Cir.1997). In some cases, such evidence is dispositive. Id. Microsoft’s obviousness arguments regarding Rita, DeRose, and S4 are the same. It argues, alternatively to its anticipation arguments, that each of those references practice all the limitations of the asserted '449 claims except the “meta-code maps” and “mapped content” limitations. It then asserts that Kugimiya contains the missing limitations. There was directly contradictory evidence on whether Kugimiya was in a different field, addressed a different problem, had a different configuration, or yielded different results from Rita, DeRose, or S4. See TT 5/19/09' at 60-61. In essence, Dr. Rhyne’s testimony regarding Kugimiya was that it was an invention directed at an entirely unrelated field and subject matter (translation) than Rita, DeRose, or S4 (document editing processing). Id. Microsoft cites evidence that it refers to as “conclusive” concessions by i4i that Kugimiya meets the “metacode map” limitation. See DX 2002 at 123 (failing to argue, in the prosecution history of the '449 patent, that Kugimiya lacked a metacode map); TT 5/15/09 p.m. at 66:3-67:15 (inventor conceding that he did not invent a metacode map). Even if the Court were to accept the dubious conclusion that this evidence “conclusively” proves that Kugimiya teaches a “metacode map,” the obviousness analysis requires more than proof that a single claim limitation is met by a prior art reference. As discussed above, i4i also presented abundant evidence contesting whether Rita and S4 were even complete prior art references and also contesting whether DeRose contained the “mapped content,” “metacode map,” and “address of use” limitations of the '449 patented claims. Also, in addition to the evidence combating whether Kugimiya, Rita, DeRose, and S4 were in the same field of innovation, i4i presented abundant evidence of secondary considerations of non-obviousness. i4i presented evidence that Microsoft both noted the absence of i4i’s patented technology in its previous WORD products as well as praised the utility of i4i’s products. See, e.g., PX 49; PX 271 at Í4Í0003274; PX 103 at MS-Í4Í00717147. i4i was presented an award from the PTO for its commercial embodiment of the '449 patent. Plaintiffs’ Illustrative 6. Further, i4i presented evidence that Microsoft struggled to design a dynamic custom XML editor. See, e.g., PX 281 at Í4Í019733; PX 270 at Í4Í00299585, Í4Í00299587; PX 195 at 3. There was also evidence of a long felt need in the industry for a dynamic custom XML editor. See, e.g. PX 81 at 1-2; PX 270 at MS-Í4Í00299588, Í4Í00299584; PX 45 at MS-Í4Í00299583; PX 270 at Í4Í00299587 (specifically addressing the need for separate content and metacodes). i4i also presented evidence of the success of commercial embodiments of the invention. See, e.g., TT 5/13/09 p.m. at 44-178; 5/15/09 a.m. at 19-104. In the wake of i4i’s voluminous evidence of secondary considerations supporting nonobviousness, Microsoft’s modest showing of Kugimiya combined with Rita, DeRose, or S4 does not render the jury verdict against the great weight of evidence. Next, Microsoft argues that it is entitled to a new trial on the basis that the Court improperly instructed the jury that Microsoft was required to prove invalidity by clear and convincing evidence regarding prior art not before the PTO. Microsoft bases its claim off of dicta found in the Supreme Court’s decision in KSR International Co. v. Teleflex Inc. that the rationale behind the clear and convincing evidence standard seems “much diminished” when defendants present evidence of prior art not considered by the PTO. 550 U.S. 398, 426, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). First, the KSR Court did not specifically hold that the clear and convincing standard was inapplicable when the PTO did not consider the particularly relevant prior art. Second, the law remains overwhelmingly that patents are to be presumed valid and it is the defendant’s burden to prove invalidity by clear and convincing evidence. See 24 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340, 1354-55 (Fed.Cir.2007); 35 U.S.C. § 282. Finally, Microsoft has cited no authority firmly supporting its proposed “preponderance of the evidence” instruction either during the charge conference or now. Microsoft’s argument is overruled. Finally, Microsoft moves for a new trial on ground that the Court erroneously excluded evidence regarding the PTO’s ex parte reexamination of the '449 patent. At the time of trial, the PTO had granted reexamination, necessarily finding that there was a “substantial new question of patentability” regarding the '449 patent. See 35 U.S.C. § 312(a)(1). Microsoft’s arguments are meritless. The simple fact that a reexamination decision has been made by the PTO is not evidence probative of any element regarding any claim of invalidity. Procter & Gamble Co., 549 F.3d at 848 (“As this court has observed, a requestor’s burden to show that a reexamination order should issue from the PTO is unrelated to a defendant’s burden to prove invalidity by clear and convincing evidence at trial.”). Even if it was, its probative value is substantially outweighed by its prejudicial effect in suggesting to the jury that it is entitled to ignore both the presumption of validity and the defendant’s clear and convincing burden at trial. See Fed.R.Evid. 403. Microsoft’s argument is overruled. Therefore, for the foregoing reasons, Microsoft’s various motions for JMOL and for a new trial regarding anticipation and obviousness are denied. MICROSOFT’S MNT OR REMITTITUR-DAMAGES Microsoft moves for JMOL on the issue of damages contending that i4i presented legally insufficient evidence to support the jury award for two main reasons: 1) the Wecker survey supporting the damage award is inherently unreliable and should have been excluded; 2) i4i’s damages expert’s, Mr. Wagner, opinion as to the amount of damages was inherently unreliable. Regarding the Wecker survey, Microsoft first argues that the Court erred in admitting the physical survey because it is hearsay. Though the survey was extensively explained by i4i’s experts and the survey results and questionnaire were both admitted into evidence, the true “evidence” supporting i4i’s damages calculation is the opinion of i4i’s damages expert, Mr. Wagner, along with the opinion of Dr. Wecker supporting the reliability of the survey. Both Dr. Wecker’s and Mr. Wagner’s opinions relied upon the survey results. Therefore, the admissibility of the survey itself (including the raw results and the questionnaire) is not governed by the hearsay exceptions, but rather, Federal Rule of Evidence 703. That rule provides: “[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Fed. R. Evid. 703. In all of its objections to the Wecker survey, Microsoft only argues that the survey is “prejudicial” because it is “unreliable” under Dauberb v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 46