Microsoft Lawyers Start to Sweep Up Word Mess

Microsoft has asked an appeals court to stay an injunction that Judge Leonard Davis of the U.S. District Court for Eastern Texas issued against the sale of Microsoft Word. The judge made the ruling after a jury found that Microsoft had infringed on a patent held by Toronto-based i4i. It is set to go into effect in October.

The injunction would force Microsoft to pull copies of Word from store shelves while developing a workaround and then push a new version through is myriad distribution channels, the company said in the court motion.

Microsoft is also appealing the finding that it infringed on i4i’s patents, which are based on XML, DOCX and DOCM file formats.

Typical Maneuvers

These filings are routine in a patent dispute.

More than likely, Microsoft will prevail in its request to stay the injunction, at least pending the appeal, said Maria Savio, a attorney with Gottlieb Rackman & Reisman.

Microsoft also stands a good chance of eking out a victory, she continued.

Most patent cases are affirmed by the Court of Appeals for the Federal Circuit, which has a reputation for being pro-patent, said Savio.

“On average, the CAFC affirms in full about 55 percent of patent cases and affirms in part 25 percent of patent cases coming to the court on appeal, while about 15 percent or so are reversed or vacated in full,” she told the E-Commerce Times. In 2008, about 11 percent of the cases were settled post appeal.

However, “patent cases related to software or computers are more likely to get reversed,” Savio pointed out. “I think there is a 50-50 chance that that the appeal will result in some victory for Microsoft, based on statistics alone.”

The CAFC can reverse on any of a number of defenses Microsoft may raise, she noted.

At the same time, there are unrelated cases pending in the U.S. Supreme Court that could ultimately have an impact on this case, said Janet B. Linn, an attorney with Eckert Seamans.

The recently filed Medela v. Kinetic Concepts, for example, is challenging jury decisions relating to obviousness — a legal concept that states an invention based on “obvious” processes or steps should not be patented, Linn said.

Still, banking on an appeal overturning the decision is a chance Microsoft might not be willing to take, she told the E-Commerce Times — even if it does buy some time by having the stay lifted.

The case has gone too far through the legal system for i4i’s claims to be completely meritless, Savio noted in an earlier interview.

Also, Microsoft made some missteps in mounting its defense — such as telling the jury that a nonpracticing entity should not be allowed to sue for infringement, according to Alexander Poltorak, chairman and CEO of the General Patent Corporation.

Judge Davis “found these arguments by the lead Microsoft counsel, Matthew Douglas Powers of Weil, Gotshal & Manges, so preposterous that he cited them for misconduct, which cost Microsoft an additional (US)$40 million in enhanced damages,” Poltorak told the E-Commerce Times.

Easy Work-Around?

Another option, outside of dragging this through the legal system, is for Microsoft to develop a work-around — which may be easier than expected.

The patent covers custom XML software, Savio said.

Specifically, Microsoft must refrain from “selling, offering to sell, and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX or .DOCM file (containing custom XML),” the injunction states.

“XML is a public-domain format, and I cannot imagine that Microsoft cannot find a way to utilize XML technology without using the custom software which is the subject of the claims of i4i’s patent,” remarked Savio.

“Microsoft may use Open Document Format (ODF), which is an open ource alternative XML-based software for word processing and other applications,” she continued. “So, Microsoft does not need to create a work-around in the traditional sense — they merely need not use the ‘custom XML software’ which is the subject of the patent claims.”