OPINION

NORA BARRY FISCHER, District Judge.

I. INTRODUCTION

This is a patent infringement case brought by Plaintiff, Carnegie Mellon University ("CMU"), against Defendants Marvell Technology Group, Ltd. and Marvell Semiconductor, Inc. (collectively "Marvell"), alleging that Marvell has infringed two of its patents, for which the Court conducted a four-week jury trial from November to December of 2012. (Docket No. 760).1 The jury rendered its verdict on December 26, 2012 in favor of CMU on infringement, validity and willfulness, and awarded damages in the amount of $1,169,140,271.00. (Docket No. 762).

Presently before the Court are several post-trial motions, one of which is Marvell's Motion for "Judgment as a Matter of Law or, in the Alternative, New Trial on Non-Damages Issues." (Docket No. 805). Included in this Motion is a (renewed) motion for a mistrial based on CMU's counsel's alleged misconduct during closing arguments and throughout the trial. (Id.). This motion has been fully briefed. (Docket Nos. 805, 806, 827, 851, 857). The Court has decided to rule on the issues raised by Marvel's request for a mistrial separately from the other requests for a new trial on non-damages issues. Upon consideration of the parties' submissions, oral argument, (Docket Nos. 880,881), and for the following reasons, Defendants' Motion for "Judgment as a Matter of Law or, in the Alternative, New Trial on Non-Damages Issues," (Docket No. 805), is denied to the extent it is predicated on CMU's alleged misconduct during the trial.

II. LEGAL STANDARD

A. Motions for a New Trial

As the matter of whether to grant a new trial is a purely procedural question not pertaining to patent law, the laws of the Circuit where the trial occurs are controlling. August Tech. Corp. v. Camtek, Ltd., 655 F.3d 1278, 1281 (Fed. Cir. 2011). Accordingly, this Court looks to the Court of Appeals for the Third Circuit precedent. A motion for a new trial pursuant to Federal Rule of Civil Procedure 59 can be granted "to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury." FED. R. CIV. P. 59(a). The Court is also "empowered to order a new trial on its own initiative `for any reason that would justify granting one on a party's motion.'" Pryer v. C.O. 3 Slavic, 251 F.3d 448, 453 (3d Cir. 2001) (quoting FED. R. CIV. P. 59(d)). A new trial is most commonly granted in select situations, including: (1) when the jury's verdict is against the clear weight of the evidence; (2) when new evidence surfaces that would have altered the outcome of the trial; (3) when improper conduct on the part of an attorney or the court unfairly influenced the verdict; or (4) where the jury's verdict was facially inconsistent. Davis v. Mountaire Farms, Inc., 598 F.Supp.2d 582, 587 (D. Del. 2009).

The Court's level of discretion varies. Moussa v. Commonwealth of Penn. Dep't of Pub. Welfare, 289 F.Supp.2d 639, 648 (W.D. Pa. 2003) (citing Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993)). "Generally, a party is not entitled to receive a new trial for objections to evidence that he did not make at or prior to the initial trial, even if they may have been successful." Ashford v. Bartz, Civ. No. 04-00642, 2010 WL 272009, at *4 (M.D. Pa. 2010) (citations omitted); see also Kiewit Eastern Co., Inc. v. L & R Constr. Co., Inc., 44 F.3d 1194, 1204 (3d Cir. 1995) ("Courts often take a dim view of issues raised for the first time in post-judgment motions. Generally, this is a decision within the sound discretion of the district court."). Where a party requests a new trial based on an allegation of improper remarks by counsel, the test is "whether the improper assertions have made it `reasonably probable' that the verdict was influenced by prejudicial statements." Richmond v. Price, Civ. No. 99-192, 2006 WL 3760535 (W.D. Pa. Dec. 18, 2006) (McLaughlin, J.) (citing Waldorf v. Shuta, 142 F.3d 601, 628 (3rd Cir. 1998)). Such statements must be viewed in light of the argument as a whole, and considering whether the curative instruction given by the Court was sufficient to remove the probability of prejudice. Draper v. Airco, Inc., 580 F.2d 91, 97 (3d Cir. 1978); see also Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 148 (3d Cir. 2002) (new trial should only be granted when curative instruction is intrinsically ineffective at wiping the inadmissible declaration from the minds of the jurors, as our "system of justice, particularly in the civil context, where the consequences of jury error are not as grave as in the criminal setting, relies upon the ability of the jury to follow instructions")(internal quotation omitted).

B. Closing Arguments

The fundamental duty of counsel in closing arguments is to argue the evidence. 88 C.J.S. TRIAL § 291. Counsel are permitted wide latitude in closing argument to comment and argue on the evidence and draw any reasonable inferences and conclusions from the evidence at trial. See United States v. Hernandez, 306 F. App'x 719, 723 (3d Cir. 2009); see also 75A AM. JUR. 2D TRIAL § 532. They are entitled to expound any theory which is reasonably supported by the evidence, present their interpretations of the evidence, and suggest that the jury draw certain inferences or conclusions from that evidence. 4 BUS. & COM. LITIG. FED. CTS. § 42:2 (3d ed.). "Where the evidence conflicts—as it often does—a lawyer may ask the jury to resolve the conflict in favor of his client." Id. For example, counsel can argue the truthfulness of his own witnesses and attack the credibility of opposing witnesses who testified at trial. United States v. Rivas, 493 F.3d 131, 137-138 (3d Cir. 2007).2 At closing arguments, "parties are free to use hypothetical analogies to make their points; to comment on the credibility of the witnesses, to discuss how they believe the various pieces of the puzzle fit into a compelling whole, and to advocate why jurors should decide the case in their favor."3 See United States Courts, Differences Between Opening Statements and Closing Arguments, available at: http://www.uscourts.gov/educational-resources/get-informed/federal-court-resources/opening-statements-closing-arguments.aspx (last visited Aug. 23, 2013). "[A]ttacks on the opposing advocate's arguments and tactics are acceptable, and indeed [] attacking and exposing flaws in one's opponent's arguments is a major purpose of closing argument." Rivas, 493 F.3d at 139. The scope of closing arguments is within the trial judge's sound discretion.4 See Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L. Ed. 2d 593 (1975); see also 88 C.J.S. Trial § 291.

III. DISCUSSION

Marvell renews its Rule 59(a)(1) motion for a new trial on the grounds set forth in its December 20, 2012 motion for a mistrial, (Docket No. 755), arguing that CMU's counsel made improper, misleading, and prejudicial comments during closing arguments that inflamed the jury, to the point where curative instructions would have made matters worse. (Docket No. 806 at 11). Marvell also raises new arguments asserting that CMU's counsel engaged in a broad pattern of misconduct during the course of trial which prejudiced Marvell. (Id. at 17).

A. Closing Argument Overview

The jurors heard closing arguments on December 20, 2012, wherein the Court allowed each party to speak for approximately an hour and a half.5 (Docket No. 759). Both parties used slide presentations of over one hundred slides each. (Docket Nos. 770, 771). In this Court's estimation, the jurors gave each attorney their full attention throughout the arguments. The next morning, December 21, 2012, the Court instructed the jury and they began their deliberations, (Docket No. 764), which continued on the morning of December 26, 2012, arriving at a verdict that day. (Docket No. 765).

B. Challenged Portions of CMU's Closing Argument

1. Advice of Counsel

Marvell's first line of objection is to CMU's counsel's discussion of Marvell's lack of advice of counsel. (Docket No. 806 at 19). To obtain an understanding of the issues, the Court turns first to the pertinent parts of the evidentiary record.

i. Factual Background

Dr. Armstrong, Vice President of Marketing, Storage Business Group, one of Marvell's 30(b)(6) witnesses, testified regarding Marvell's IP Policy:

(Docket No. 761 at Jt. Ex. C at 9-10).

CMU also presented evidence that Gregory Burd, Marvell's engineer who developed the accused technology, alerted his superiors to the existence of the CMU Patents in 2002. (Pl. Ex. 280, 283). Mr. Burd testified:

(Docket No. 726 at 170). However, Burd's then boss, Toai Doan, testified that "[i]n fact, I don't recall trying to do anything" in response to being alerted to the CMU Patents. (Docket No. 761 at Jt. Ex. D). Dr. Wu who subsequently became Burd's boss and worked to develop the accused technology testified that he had communicated with in-house counsel regarding the patents-in-suit:

(Docket No. 707 at 323-324). Dr. Wu did not testify further regarding this communication.

The record also shows that CMU sent two letters in 2003 to Dr. Pantas Sutardja, Marvell's CTO, and Matthew Gloss,7 its then General Counsel, enclosing copies of the patents and inquiring if there was an interest in the patents. (Pl. Ex. 422, Pl. Ex. 431). Marvell did not respond to these letters. (Docket No. 682 at 149-152). Later, Fujitsu, "a customer of Marvell's read channel i.e. 5575M, 7500M," wrote to Marvell in November 2004, that it had received a license offer for the CMU patents-in suit. (Pl. Ex. 477). Fujitsu wrote that "since it seems that these patents might be related to read channel, we would like to know, by the end of November, your opinion regarding relationship between CMU's Patents and the above Marvell lead [sic] channel and the specific grounds/reasons for such opinion." (Id.). In this regard, Dr. Armstrong stated "[t]he response to a letter like this would have been to forward it to legal and have legal determine the appropriate action." (Docket No. 761 at Jt. Ex. C). Lead counsel, at the time,8 Dr. Radulescu then stated during Dr. Armstrong's deposition:

(Id. at 535). Subsequently, during a telephone discovery conference with the Court, Dr. Radulescu stated that "we will not be asserting the advice of counsel defense in part because the issues they have been getting into happened five years ago or six years. We don't got people." (Docket No. 174-1 at 77-78). Further, Marvell asserted attorney-client privilege and work product protection every time that CMU inquired about any potential opinion of counsel relating to the patents-in-suit. (Docket No. 858-1 at 17-20).

As part of its opening statement9 on November 28, 2012, CMU's counsel highlighted these factual circumstances:

(Docket No. 671 at 116-117). Marvell did not object to this statement.10

During trial, given Dr. Wu's11 and Mr. Burd's referenced testimony regarding consultation with in-house attorneys, CMU brought a "Motion in Limine to Strike Testimony and to Preclude Argument Relating to Marvell's Pre-Suit Communications with Counsel" on December 17, 2013. (Docket No. 722). On December 20, 2013 the Court granted, in part and denied, in part said motion. (Docket No. 753). The Court denied the motion to the extent that CMU sought to strike testimony of Dr. Wu regarding his discussions with in-house attorneys. (Id.). The Court, however, granted the motion precluding Marvell from arguing that it sought an opinion of counsel and obtained a favorable opinion of counsel with respect to whether Marvell was infringing the patented methods through its NLD-type and MNP-type chips and simulators and its Kavcic-Viterbi simulator. (Id.).

The issue of advice of counsel was also addressed in the context of final jury instructions. The Court's October 2012, Pretrial Order had required the parties to submit "joint jury instructions."12 (Docket No. 315). Yet, throughout the trial, disputes on instructions remained, with the Court receiving the last "joint" draft of proposed jury instructions at 10:17 p.m. the night before the start of the charge conference. The Court held an extensive charge conference over nearly three days. (Docket Nos. 752, 759, 764). Over the course of these three days the Court went through several drafts of the instructions and granted the parties multiple opportunities to argue anything and everything, including the issues surrounding advice of counsel. (Docket Nos. 752, 759, 764).

The Federal Circuit directs that while a failure to obtain an opinion of counsel no longer provides a presumption that such opinion would have been unfavorable, a failure to proffer favorable advice is crucial to the willfulness analysis. See Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337, 1345 (Fed. Cir. 2004); In re Seagate Tech., LLC, 497 F.3d 1360, 1369 (Fed. Cir. 2007).13 Thus, the Court suggested using the 2012 AIPLA Model Patent Jury Instruction in this regard:

2012 AIPLA Model Patent Jury Instructions, § 12.2 (2012). Yet, after closing arguments, Marvell, through lead counsel, Mr. Johnson, requested that the Court not include this instruction as part of the final instructions. (Docket No. 759 at 209, 210, 234-235; Docket No. at 761 at Ct. Ex. F).

In closing, Marvell, itself, argued about its policy to review patents, saying:

(Docket No. 759 at 79-80). Then in CMU's closing, Mr. Greenswag argued the following, which Marvell now maintains was prejudicial:

(Docket No. 759 at 140). And then shortly thereafter:

(Docket No. 759 at 142). Marvell believes that these two statements were prejudicial as they allegedly misstated evidence which Marvell could not rebut. (Docket No. 806 at 14).14

ii. Discussion

Turning first to CMU's counsel's initial comments at page 140 cited above, "failure to object precludes [a party] from seeking a new trial on the grounds of the impropriety of opposing counsel's closing remarks." Drozdowski v. Northland Lincoln Mercury, Civ. No. 04-756, 2007 WL 4563520 (W.D. Pa. Dec. 21, 2007), aff'd, 321 F. App'x 181 (3d Cir. 2009). Marvell's counsel only objected to same at a later sidebar during argument directed to a different objection when Mr. Greenswag was discussing the 1983 DSSC agreements.15 (Docket No. 759 at 149-166); see also infra section III.B.2. In any event, CMU's argument on this point does not warrant a new trial because it is neither improper, nor prejudicial for the following reasons.

There is no impropriety because the Court's order, (Docket No. 753), did not preclude CMU from arguing that Dr. Wu or Mr. Burd never received an opinion of counsel. (Docket No. 759 at 140). As Marvell had claimed attorney-client privilege over such communications and any related documents, the Court ruled on CMU's motion in limine that Marvell could not argue that the opinion of counsel was favorable because they had received a subsequent patent, without producing those communications. (Docket No. 753). Nor did the Court preclude Marvell from arguing at trial and in closing that the CMU patents were brought to the attention of the legal team at Marvell. Indeed, the Court overruled CMU's objection to this line of argument during Marvell's closings. (Docket No. 759 at 79). Likewise, nothing in the Court's order precluded CMU from arguing that Marvell did not obtain an opinion of counsel. (Docket No. 753).

The Court held that the parties were limited to relying on the non-privileged facts, i.e. that Dr. Wu spoke with counsel and that no written opinion of counsel was proffered by Marvell. (Docket No. 753). The Court did not allow either party to argue that an opinion of counsel was likely favorable or unfavorable. (Docket No. 759 at 205, 227). Neither party breached this ruling, as CMU only spoke to the lack of an opinion, which was a proper inference from the evidence presented at trial. Telcordia Technologies, Inc. v. Lucent Technologies, Inc., Civ. No. 04-875, 2007 WL 7076662 (D. Del. Apr. 27, 2007) (holding it proper for "the plaintiff to tell the jury that the defendant did not obtain an opinion of counsel [as it] may indicate to the jury that the defendant did not act properly"). It is undisputed, that at closing arguments counsel can and should argue from the evidence and any inference that may be fairly drawn from that evidence. See United States v. Hernandez, 306 F. App'x 719, 723 (3d Cir. 2009); see also 75A AM. JUR. 2D TRIAL § 532.

Further, it was Marvell who spoke first touching directly on the topic of Dr. Wu's consultation with an attorney.16 (Docket No. 759 at 79-80). Since Marvell argued that Dr. Wu consulted with a lawyer, it is hardly prejudicial that CMU argued a legitimate inference given the lack of written, or any other, confirming evidence related to said meeting. Also, if Marvell believed that such argument should have been precluded it could have sought a ruling from the Court once CMU set forth these facts during its opening statement twenty-two days earlier.17 (Docket No. 671 at 116-117). It did not.

The second argument that Marvell finds objectionable, relates to Marvell's lack of response to CMU's letters. (Docket No. 759 at 142). In this Court's estimation, it is likewise insufficient to support a new trial. Most importantly, the Court upheld Marvell's objection at the time to this line of argument and struck the remarks from the record. (Id.). Throughout the trial and in its final instructions, the Court instructed the jury that anything stricken from the record is not evidence, and must not be considered in its determinations employing the Third Circuit standard charge regarding same.18 (Docket No. 764 at 55). Hence, this Court presumes, as does both the Supreme Court and the Third Circuit, "that juries act in accordance with instructions given them." City of Los Angeles v. Heller, 475 U.S. 796, 798, 106 S.Ct. 1571, 1573, 89 L. Ed. 2d 806 (1986); Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 425 (3d Cir. 2006).

Moreover, CMU's contention is based on facts of record. (Pl. Ex. 422, 431).19 All parties agree that there was no response to these letters. (Docket No. 759 at 85) ("Dr. Sutardja says we didn't respond; why? Because we're not using — we're not interested in using that."). Just because certain evidence or inferences are unfavorable to one party, does not make same prejudicial. By definition, all relevant evidence will be prejudicial to one of the parties. See e.g. McQueeney v. Wilmington Trust Co., 779 F.2d 916, 923 (3d Cir. 1985) ("Virtually all evidence is prejudicial or it isn't material"); United States v. Gross, Crim. No. 91-00068, 1991 WL 83103 (E.D. Pa. May 13, 1991) ("all of the government's evidence is prejudicial, that is it tends to incriminate the defendant"). As much as Marvell may dislike these facts or want to distance themselves from them, they are what they are. Hence, argument directed to same is appropriate.20 The motion for a new trial on the basis of advice of counsel arguments in Plaintiff's closing is denied.

2. Damages Beyond a Reasonable Royalty

Marvell next objects to CMU's counsel's reference to Marvell "breaking the chain of innovation" in its closing. (Docket No. 802 at 14). The statement was:

(Docket No. 759 at 149). After argument, at sidebar, the Court gave the following instruction:

(Id. at 167).

Now, Marvell argues that this portion of CMU's closing was not only prejudicial but also violated the Court's Memorandum Order (Docket No. 608) on Marvell's "Motion in Limine No. D12 to Preclude CMU From Introducing Evidence and Argument Regarding Any Compensatory Damages Beyond a Reasonably Royalty." (Docket No. 523).

In relevant part, the abovementioned Memorandum Order addressed the opinions of CMU's damages expert, Ms. Catherine Lawton,21 specifically her ultimate opinion that the parties would have agreed to license the patent for $0.50 a chip. (Docket No. 523). Through this motion, Marvell sought to bar CMU from presenting evidence and argument regarding any purported harms other than the loss of the reasonable royalty that would have resulted from the hypothetical negotiation for a license to the patents-in-suit.22 (Docket No. 523-1). As the Court read that motion, it revolved around the disputed factual predicate concerning the calculation of a reasonable royalty and whether such harms were relevant to Ms. Lawton's calculation of the $0.50 royalty.23 On this issue, the Court held that:

(Docket No. 608 at 2, 8). Under this order, either party could base an argument on evidence of the economic circumstances at CMU and the DSSC.24

Thus, Mr. Greenswag, CMU's counsel, in closing, read from page 4 the 1983 DSSC-IBM Associates Agreement, (Def. Ex. 17), introduced by Marvell at trial, that said:

(Def. Ex. 17) (emphasis added). In light of this evidence against which the Court considers counsel's argument, it does not appear that he crossed the Court's line. (Id.).

Moreover, the parties are reminded that a ruling in limine "is preliminary in nature and subject to change depending on the development of evidence at trial, on cross-examination and rebuttal." United States v. Curran, Cr. No. 09-0325, 2011 WL 3421409 (W.D. Pa. Aug. 4, 2011). "Indeed, even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling." Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). To that end, the Court continuously counseled that the parties make their record, and preserve their objections, as proffered evidence may change the underpinnings of the Court's motion in limine rulings. The Court's ruling on the motion in limine stated that at that time CMU had not "established any factual predicate" to support any comments or conclusions on CMU and the DSSC's mission. (Docket No. 608 at 4-5) (emphasis added). However, at trial, CMU presented through its witnesses, especially Dr. Cohon and Dr. Kryder, substantial testimony about the creation, mission and goals of CMU and the DSSC. Dr. Cohon initially recounted the history, goals and objectives of CMU and the DSSC, saying that "the Data Storage Systems Center is one of the very successful collaborative research centers that Carnegie Mellon has ever created. In fact, that anybody has ever created" and "[a]t one time it was estimated and it may still be the case that half of all the Ph.D's produced in that field [] came out of the Data Storage Systems Center at CMU." (Docket No. 671 at 193-194). Similarly, Dr. Kryder outlined how he originally set up the DSSC, the investments industry partners made, the investments CMU made, and the comprehensive work the Center accomplished. (Docket No. 682 at 27-42). Likewise, Dr. Moura discussed how he was one of the experts called in by Dr. Kryder to form a team with industry partners to write the funding proposal to the National Science Foundation. (Docket No. 673 at 42).25 Marvell then elicited testimony about the goals and objectives of CMU, during its cross examination of Mr. Wooldridge, head of CMU's tech transfer office. (Docket No. 682 at 176). Specifically, Mr. Wooldridge testified that CMU prides itself on its computer science school, robotics and other departments.26

"[B]reaking the chain of innovation" was a partial quote from Marvell's own exhibits: the 1983 IBM-DSSC Agreement, (Def. Ex. 17); the Seagate-DSSC Agreement, (Def. Ex. 39); and the Minnesota Mining and Manufacturing Company (3M)-DSSC Agreement, (Def. Ex. 40), all of which were admitted into evidence.27 These agreements went out with the jury as exhibits and they were free to read these agreements in full during deliberations. As extensive evidence had been entered onto the record regarding the DSSC, its function and its goals, from its founding in 1983 to the present, CMU's counsel were not out of bounds in making reference to same in its closing argument.

To the extent that Marvell maintains that the "breaking the chain" argument was improper, irrelevant and speculative, (Docket No. 806), it is not reasonably probable that the jury was inflamed by the statement. See Johnson, 283 F.3d 138 at 148. This commentary was brief, approximately seven (7) lines of a forty-six (46) page closing argument transcript, after a four (4) week trial of almost 4,000 pages of transcript. (Docket No. 759).

Moreover, the comments were stricken and the jury was instructed multiple times to disregard any comments struck by the judge. (Docket No. 764 at 167; 54-55); Hill, 435 F.3d at 425 ("we presume that juries follow instructions"). Further, these comments were made during closing argument and the jury was also told that closing arguments by the attorneys are not evidence. (Id.); (Docket No. 764 at 167; 54-55).28 In light of the Court's instructions and upon review of the record as a whole, these statements about breaking the chain of innovation simply do not rise to the level of prejudice requiring a new trial. Drozdowski, 2007 WL 4563520. ("the jury was instructed that neither counsel's opening or closing remarks are evidence and should not be considered by them as such and that they are charged with remembering the evidence presented and to apply the law as instructed by the Court . . . Because it is presumed that a jury will follow the instructions that they are given, it may be presumed here that the jury applied the law as instructed by the Court and disregarded any contrary statements made by counsel.").

3. Identity Theft

Marvell next challenges CMU counsel's reference to infringement being like "identify theft" asserting it warrants a new trial. (Docket No. 806 at 16). The "offending" statement was:

(Docket No. 759 at 167-169).

The Third Circuit has recognized "that the propriety of put yourself in the [parties']29 shoes' argument, as a tool of advocacy, is doubtful because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence." Edwards v. City of Phila., 860 F.2d 568, 574 (3d Cir. 1988) (internal quotation omitted). This line of argument is sometimes called the "Golden Rule." (Id. at 573). However, the Third Circuit has also held "that a clear and complete jury instruction on the elements of the claim asserted and on the allocation of the burdens of proof, whenever given, is sufficient to cure harm caused by a `Golden Rule' argument." Id. at 574; In re Bayside Prison Litig., 331 F. App'x 987, n. 7 (3d Cir. 2009). Here, the testimony in question was stricken; the jurors were instructed to disregard stricken statements; and the jurors received clear and complete instructions on the elements of the claims and the allocations of the burden of proof. (Docket No. 764). Accordingly, to the extent such a statement is prejudicial,30 under the "Golden Rule" or similar theory, in this Court's estimation, the Court's instruction as a whole has cured any potential harm, and a new trial is not required on this basis.

4. Closing Argument in Sum

Upon review of the record against CMU's closing argument, it is clear to the Court that none of its counsel's statements singularly nor taken together, made it reasonably probable that the verdict was influenced by any resultant prejudice. Forrest v. Beloit Corp., 424 F.3d 344, 351 (3rd Cir. 2005). In so ruling, the Court has considered the closings in light of the entire trial, the nature of the statements, and the amount of energy extended by both counsel and the Court through this four week trial. See Richmond v. Price, Civ. No. 99-192 ERIE, 2006 WL 3760535 (W.D. Pa. Dec. 18, 2006) ("Courts have uniformly required misconduct by counsel to be extremely pervasive and egregious before a new trial will be granted.") The Third Circuit has observed that "at least for civil trials . . . improper comments during closing arguments rarely rise to the level of reversible error" and this is one of those instances. Dunn v. HOVIC, 1 F.3d 1371, 1377 (3d Cir. 1993). Both sides zealously argued their parties' positions, using the evidence of record and all reasonable inferences therefrom, to present compelling points to the jury. United States v. Young, 470 U.S. 1, 10 (1985). Marvell has offered no evidence or proof of prejudice beyond the mere fact the jury decided in CMU's favor. Further, the jury awarded damages in the exact amount calculated by Plaintiff's damages expert; they did not levy any damages beyond the scope of those presented and argued by CMU. Thus, Marvell's motion for a new trial on these grounds is denied.

C. Pattern of Prejudice

1. Hometown Bias

As noted, Marvell has raised new arguments in its post-trial motion alleging that CMU's conduct throughout trial resulted in prejudice warranting a new trial. (Docket No. 806 at 22) Specifically, they argue that the then President of CMU, Dr. Jared Cohon in making hometown references likely "inflamed" the jurors to favor their local institution. (Docket No. 806 at 23; 881 at 95). Marvell contends that such statements were part of a larger theme of "[y]ou know, CMU, Pittsburgh, non-profit, givers, job creators, local, Americans. Marvell, out-of-towners, immigrants, not Americans in their view, profiteers, not not-for-profit, not creating any jobs here in Pittsburgh." (Docket No. 881 at 97). CMU counters that it is "frankly . . . offensive for Marvell to stand before the Court and suggest that CMU tried to prey [on] some sort of racial or national preference here. It's mind-boggling and certainly the Court would never have permitted it and it's a Hail Mary because they've never said that before." (Id. at 101).

Dr. Cohon was CMU's first witness.31 (Docket No. 761). He discussed the founding of the university, its goals, objectives, the DSSC, and areas of excellence of CMU. (Docket No. 671 at 187-190). At the time, counsel for Marvell objected to only one facet of his testimony, and the Court allowed the questioning to stand, stating:

(Id. at 190).

Just as the Court explained then, such discrete references to Pittsburgh or positive views of CMU did not "inflame" the jurors' local bias such that justice would require a new trial. Bhaya v. Westinghouse Elec. Corp., 709 F.Supp. 600, 601 (E.D. Pa. 1989). It is expected that the counsel and witnesses provide background information on the parties and their dispute to inform the jury of the circumstances that led them to seek relief in this Court. FED. R. EVID. R. 401 Advisory Note ("Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding."). The Court is at a loss how CMU could be expected to present this case to the jury without mentioning "Pittsburgh."32 In his testimony, Dr. Cohon was simply giving background information on the University and the DSSC, which served to establish the facts and circumstances surrounding the invention of the patents in suit. (Docket No. 671). Furthermore, it is a fundamental element of successful trial advocacy to introduce the jury to your client, and when the client is a corporation or university, counsel should endeavor to give a "face" to that entity. CMU did this with Dr. Cohon, and Marvell did this with Dr. Sutardja.33 To that end, Dr. Sutardja offered similar testimony about his own personal history that led to Marvell's founding and their goals. (Docket No. 707 at 36-45). He also described the secret to Marvell's success was its "people that are smart," who are extremely hard-working, "friendly," and "want to make a difference in the world." (Id. at 54-56). Dr. Sutardja expressed that Marvell's most important awards are those from the customers, (including an early award one from Seagate, a first of its kind). (Id.). Both presidents of their respective organizations supplied background with obvious pride for the people and the entities they represent. Any different interpretation is contrary to the content and tone of their testimony.

The Court similarly refuses to draw a bright line rule regarding references to Pittsburgh or comment on same. As CMU has noted in argument and briefing, both parties tried to relate to the jurors. (Docket No. 827). Marvell referenced Heinz Field, (Docket No. 671 at 152-153), Evgeni Malkin,34 (Docket No. 759 at 103), and conversely tried to argue that Dr. Cohon stated "We are Pittsburgh" in an attempt to demonstrate local bias. (Docket no. 759 at 60).

CMU counters that Marvell is trying to suggest that CMU preyed on some racial or national preference. While the Court hopes that Marvell is not actually arguing there was any anti-immigrant/anti-foreigner bias by the jury, for completeness sake, the Court puts forth its belief that there was no such actual or implied bias by the members of the jury, all of whom followed the trial closely.35 Initially, the Court notes that Marvell's proposed voir dire did not include any requests for questions exploring jurors "local bias." (Docket No. 621). The agreed upon voir dire consisted of 29 questions for each juror, not including follow-ups, probing whether the jurors had any knowledge of or bias against the parties, counsel, witnesses, and the subject matter.36 (Docket Nos. 666, 669). The Court allowed both sides' trial counsel and jury consultants to participate in the jury selection process and was generous in granting challenges for cause. Unsurprisingly, voir dire lasted for two full days.37 To the extent Marvell thought that any juror was biased, its opportunity to expose those possible biases and challenge a juror, was at voir dire. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 849, 78 L. Ed. 2d 663 (1984). Yet, Marvell did not assert at voir dire that any jurors expressed "local bias." Accordingly, failure to raise such issue acts as a waiver. Kirk v. Raymark Indus., Inc., 61 F.3d 147, 156 (3d Cir. 1995); (Docket Nos. 666, 669). Not only has Marvell failed to preserve this issue, it has not proffered any evidence of juror bias or prejudice.

Both Marvell and CMU had numerous fact witnesses38 who were foreign born.39 Besides, Pittsburgh is a city of immigrants40 and CMU itself has a very diverse student body, particularly a large Asian population.41 Accordingly, any argument based on ethnic, racial, or outsider bias is not well taken.

Moreover, there is no indication that the jury was "inflamed" or rushed to judgment, as the Court and counsel repeatedly noticed how attentive and studious the jury was throughout the trial. (Docket No. 764 at 8, 17). Indeed, the jurors started deliberating on Friday December 21, 2012, did not reach a verdict that day, and instead chose to continue deliberations starting at 9:00 a.m.42 on December 26, 2012. (Docket No. 764 at 132).

In any event, the jury was told by the Court in both the initial and final instructions to perform their "duties without bias or prejudice against any party." (Docket No. 764 at 46, 56; Docket No. 671 at 51). Considering all these facts, the Court finds no grounds to order a new trial on the basis of alleged "hometown bias."

2. References to "Billions"

Last, Marvell asserts that CMU elicited constant references to "billions," which taken together created prejudice to Marvell such that fundamental fairness requires a new trial. (Docket No. 806 at 19). CMU responds that this argument was not part of Marvell's original mistrial motion and is, therefore, waived. (Docket No. 827).

CMU rightly contends that it was Marvell who repeatedly mentioned "billions" throughout trial, not CMU. (Id.). Throughout this trial, it appeared to the Court that Marvell was attempting to ridicule CMU's damages request of 1.1 billion dollars. (Docket No. 671 at 177) ("would I pay a billion for it in that hypothetical negotiation?"). By the Court's count, Marvell's counsel mentioned "billion dollars" seven times in his opening statements, (Docket No. 671). Accordingly, Marvell and its team opened the "billion dollar" door and are now estopped from claiming any negative repercussion. See Kirby v. J.C. Penney Corp., Inc., 2009 WL 3651201 (W.D. Pa. Oct. 29, 2009); Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., Civ. No. 09-290, 2012 WL 6562413 at fn 13 (W.D. Pa. Dec. 17, 2012). If Marvell was attempting by argument to cast CMU's request for a billion dollars in a negative light, they cannot legitimately argue that CMU's references to same were prejudicial. "[T]he size of the award alone [is not] enough to prove prejudice and passion." Marcus v. PQ Corp., 458 F. App'x 207, 213 (3d Cir. 2012) (quoting Evans v. Port Auth. of New York & New Jersey, 273 F.3d 346, 352 (3d Cir. 2001)) (internal citations omitted).

At the relevant damages portion of this trial, the Court held (just as it did at summary judgment) that Ms. Lawton should not discuss Marvell's total revenue, total profit or total margin, which is in the billions, in order to avoid any comparative effect that may taint the jury's award. Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., Civ. No. 09-290, 2012 WL 3679564 (W.D. Pa. Aug. 24, 2012). However, it was Mr. Creighton Hoffman, Marvell's damages expert, who needed to be reminded to avoid throwing around other damages awards of billions of dollars to avoid any chance of comparative effect. (Docket No. 711 at 116). In fact, at one point, the Court had to have Marvell's counsel tell Mr. Hoffman privately to refrain from references during his testimony to "billion" dollar cases.43

CMU's few references to "billion" refer to the number of chips sold by Marvell in the relevant time period, which according to the evidence was approximately 2.34 billion. (Docket No. 759 at 135, 147, 172). The Court fails to see how the parties could conduct a trial without ever mentioning the total number of accused products. In regards to the billion dollar damages request, it was Marvell's counsel, during openings, closing and throughout trial, who referred to the billion dollar award. (Id. at 86) ("And now they're telling you in the hypothetical negotiation they would have insisted on billions of dollars. Give me a break."). CMU states that they have gone through the nearly 4,000 pages of trial transcript and found 61 references to "billion" by Marvell and 51 by CMU. (Docket No. 827 at 19). While this Court has neither the time nor resources to check these figures, it is cognizant that references to "billion" were limited and that witnesses and counsel of both parties referenced same at various times. Upon review of the record, the Court finds no prejudicial effect by any use of the word "billion" and a new trial is not warranted on this basis.

IV. CONCLUSION

"The decision whether to grant a mistrial is reserved to the broad discretion of the trial judge" and in this Court's estimation, the circumstances in this case do not warrant any such action. Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1863, 176 L. Ed. 2d 678 (2010). Marvell, in throwing old and new grievances at the Court under the guise of prejudice, is trying to do what it could not do at trial: convince the Court to throw out this case and hope that a second time around will be more successful. The jurors, this Court, and its staff, devoted four weeks of their life around the holidays44 to pay careful and thorough attention to the merits of the case, and unfounded, broad assertions of "prejudice" or an "inflamed"45 jury are insufficient to erase that result and mandate a new trial.

Accordingly, Defendants' Motion for "Judgment as a Matter of Law or, in the Alternative, New Trial on Non-Damages Issues" (Docket No. 805) is denied in part, to the extent predicated on CMU's alleged misconduct. A forthcoming opinion will address the remaining issues of this motion.