dissenting.
Because substantial evidence supports the jury’s finding of infringement and the district court incorrectly granted judgment as a matter of law on the award of lost profits, I dissent.
The construction of claim 1, element f, of the 5,336,878 patent that was read to the jury simply required it to determine whether the accused device has a scan speed selector or its equivalent which, *1328based on the user’s selection, generates a scan speed signal to indicate that one of the different scan speeds is selected. As the court observes, neither party objected to this instruction, so it is not at issue. Hewlett Packard presented evidence that Mustek’s scanner allowed a user to select a scan speed through the selection of a resolution. And while the user may not know that he is selecting a scan speed, that is irrelevant. The unchallenged claim construction does not require that a user know what he is selecting, only that a selection has been made. By choosing a resolution, a scan speed has been selected. It also is of no moment that there is not a one to one correspondence or that some resolutions share the same scan speed, a speed has been selected nevertheless. Whether selecting a resolution was the same as selecting a scan speed, was a factual determination for the jury. Evidence presented clearly supports the proposition that selecting a resolution results in the selection of a speed. Therefore, the jury’s finding of infringement should be affirmed.
Confirming infringement requires review of the trial court’s treatment of the jury’s damages verdict. The district court determined that substantial evidence did not support the lost profits award because it had excluded any testimony from Hewlett-Packard’s damages expert regarding the quantum of an award if only one patent were found to infringe. This might have been the correct result if the expert’s testimony had been the only evidence on point, but that is not the case. First, the jury was instructed how to calculate damages if both U.S. Patent Nos. 5,336,878 and 4,837,635 were infringed. The methodology was simple: multiply the number of infringing units Mustek sold by Hewlett-Packard’s market share to find the number of units eligible for lost profits; then multiply the number of eligible units by Hewlett-Packard’s profit margin per unit to yield lost profits. Exhibits 407 and 408 detail which scanner models infringe which patents, and exhibit 480 shows Mustek’s unit sales by model. Exhibit 477 summarizes Hewlett-Packard’s market share by scanner model. Lastly, exhibit 485 reflects Hewlett-Packard’s actual sales and profitability. The district court concluded that expert testimony was required to explain to the jury how to piece the evidence together, even as the court acknowledged that the jury could follow the exhibits to reach a rational award. The jury merely needed simple math skills and the exhibits to figure the lost profits. That is what it quite capably did and its verdict should be reinstated.