Microsoft finds itself hit by a responding brief from i4i, the small Canadian company that claims Microsoft Word violates its XML-related patent. Although the original verdict was that Microsoft would have to pull copies of Word from store shelves within 60 days and pay nearly $300 million in fines, an appeals court ruled on Sept. 3 that Word could keep being sold during the case.Microsoft
finds itself embroiled in yet another round of the patent-infringement case
leveled against it by Canadian company i4i, which submitted a responding brief
on Sept. 8 rebutting Microsoft's recent appeal.
In a statement following filing of the responding brief in the U.S. Court of
Appeals for the Federal Circuit, i4i chairman Loudon Owen said his company
"refutes each and every one of the same weak defenses Microsoft repackaged
from the trial and raised on appeal."
For an analysis of the meaning of "custom XML" in relation to the i4i-Microsoft patent dispute, click
here.
The original verdict, which ruled that Microsoft had violated an XML-related patent held by i4i, would
have yanked copies of Microsoft Word, which allegedly incorporates the
offending code, from store shelves by mid-October.
However, on Sept. 3, the
U.S. Court of Appeals for the Federal Circuit granted Microsoft's request to
keep selling Word during the case. In addition to requiring that copies of Word
be pulled from store shelves, the verdict also ordered Microsoft to pay nearly
$300 million in accumulated fines.
Microsoft's claim is that i4i
failed to corroborate its creation date for the technology behind the patent.
However, "Unlike in priority disputes, where requiring corroboration of an
inventor's testimony makes sense, there is no reason to require corroboration in all instances, and this court never
required it," i4i said in the Sept. 8 brief.
Damages are another issue tackled in the brief, with i4i arguing that the
survey that formed the basis of its damages claims was "designed,
conducted and analyzed using accepted methodology, and its admissibility was
beyond legitimate question." The damages were enhanced, i4i argued
further, because of Microsoft's "litigation misconduct."
As the weeks have gone by, the case has attracted a good deal more attention
than most patent-infringement suits submitted in East Texas,
a district known for such legal actions. Small companies have a history of
winning patent-infringement suits against larger companies there, although many
such cases are also settled out of court.
Two major companies in Microsoft's ecosystem, Dell
and Hewlett-Packard, both signaled their intention to file friend-of-the-court
briefs in the case. Both risk widespread fiscal damage were Word sales to
halt, an idea expounded by Microsoft's legal counsel in an Aug. 18 emergency
motion: "Even if Microsoft ultimately succeeds on appeal, it will never be
able to recoup the funds expended in redesigning and redistributing Word, the
sales lost during the period when Word and Office are barred from the market,
and the diminished goodwill from Microsoft's many retail and industrial customers."
However, i4i has previously indicated a public willingness to see the case
to its courtroom conclusion: "Where we come from, if someone tries to take
something that belongs to you, you stand up to them; you don't just reach for
the calculator," Loudon
Owen, chairman of i4i, said in an Aug. 17 interview with eWEEK. "We're
not in a position to guess or second-guess or speculate as to what the court is
going to do."
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