Page:MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. (5th Cir., 20 July 2010).djvu/12

No. 08-10521 error.” ''Prunty v. Ark. Freightways, Inc.'', 16 F.3d 649, 652 (5th Cir. 1994). MGE’s decision to seek GE/PMI’s profits was clearly a last-minute attempt to save its copyright infringement claim from dismissal for failure to prove damages. MGE has not succeeded. GE/PMI presented evidence that approximately 10% of PMI’s UPS service business came from MGE-branded machines, and MGE’s software was usable only with MGE UPS machines and not with competitors’ products. Thus, PMI’s total revenue far exceeds the approximately 10% of revenue reasonably related to the infringement of MGE’s copyright. MGE needed to present a more narrowly tailored calculation of PMI’s profits in order to cognize a claim for copyright damages “attributable to the infringement.” Accordingly, the district court erred in denying GE/PMI’s Rule 50(a) motion on MGE’s copyright infringement claims because MGE has not shown damages under § 504(b).

B
GE/PMI argues the district court erred in denying its Rule 50(a) motion regarding MGE’s misappropriation of trade secrets and unfair competition claims because the evidence did not support damages for these claims. At the close of MGE’s case, the only evidence introduced to support its damages claims was the aforementioned DX-37 chart showing PMI’s total revenues earned from all sources of income. GE/PMI contends that without evidence of PMI’s net profits earned on the MGE equipment at issue, MGE’s state law claims should have been dismissed on GE/PMI’s Rule 50(a) motion.

There is little precedent under Texas law to guide us in determining whether MGE has sustained the burden of proof required of a plaintiff seeking to recover a defendant’s net profits. In the only reported Texas case involving the recovery of defendant’s profits for a misappropriation of trade secrets claim, the Dallas Court of Appeals held that although defendant’s profits are a “proper element[ ] of damages in a case involving the wrongful use of a trade secret,” a 12