The court granted defendants' motion for a new damages trial following remand even though defendants had not objected to the use of the 25% rule at trial. "Given the widespread acceptance of the 25 percent rule, it would not have been unreasonable for [defendant] to have failed to raise the issue before the Court. . . . [T]he Federal Circuit had implicitly upheld the use of the 25 percent rule prior to [Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011)], and Defendant had no notice that an objection to its use would have been fruitful in light of the Federal Circuit’s previous treatment of the rule. The law does not speak in absolutes and recognizes that a litigant might not be aware of the necessity of making an objection at trial where the great weight of the case law suggests that an objection is not worth making."
Spine Solutions, Inc. v. Medtronic Sofamor Danek, Inc., et. al., 2-07-cv-02175 (TNWD November 23, 2011, Order) (McCalla, J.)