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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EOLAS TECHOLOGIES
INCORPORATED,
and
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Plaintiffs,
v.
MICROSOFT CORPORATION,
Defendant.
No. 99 C 0626
Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
CONSOLIDATED RULINGS ON POST-TRIAL MOTIONS
Post Trial Motions of Microsoft
1. Judgment As a Matter of Law and For a New Trial
This motion rehearses a series of arguments that failed the first time around. The papers
before me are, for the greatest part, a re-briefing of what has already been thoroughly argued and,
in my view, correctly decided. The primary purpose of this motion is to avoid claims of waiver if
the judgment is appealed, and it will be another court that decides whether this purpose has been
1 There is some protest in Eolas’s response that Microsoft is arguing points that are
waived. Eolas asserts that Microsoft abandoned its contention that the executable application
had to be present on the client workstation before the browser parses the embed text format, that
Microsoft failed to object to aspects of the instruction covering display of the object and that
Microsoft waived its objection to instructions about “heavy lifting” referring to the use of
resources outside the browser. Eolas may be correct, but waiver of objections to instructions that
correctly embody the rulings on claim construction may not always serve as a waiver of appellate
objections to the claim construction itself, so long as those objections were clearly stated during
the claim construction hearing. I say “may be correct” because I have not reached a decision on
the question of waiver. I have relied on the alternative ground that my rulings are correct. A
reviewing court is, of course, free to decide the question of waiver and rely on that should it see
fit to do so.
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achieved.1 The secondary purpose of this motion is to cite decisions not available at the time of
the original claim constru