Last August, Microsoft Corp. was sued by San Jose, Calif.-based Alacritech Inc., a data networking firm that claims Microsoft infringed on its patents in developing its TCP-offload technology, code-named Chimney. The technology was slated for inclusion in the Scalable Networking Pack for Windows Server 2003, originally set for release in 2004.
Alacritech had requested an injunction that would have covered Longhorn itself, effectively stopping the OS in its tracks.
But the U.S. District Court for the Northern District of California in San Francisco chose a more limited injunction, barring Microsoft from "making, using, offering for sale, selling, importing or inducing others [to use]" the companys Chimney technology.
Microsoft has denied Alacritechs allegations that it discussed the technology with the networking company and later unveiled similar intellectual property.
"Microsofts Chimney technology was developed independently by Microsofts own engineers," said Microsoft spokeswoman Rachel Wayne. She added that Microsoft, as an intellectual property company, is committed to respecting the IP rights of others.
Although Microsoft, like many large companies, is often embroiled in lawsuits, this injunction could be serious for the companys health. Longhorn has already slipped in its release date more than once, and if the injunction holds, it is possible that Microsoft developers wont even be able to touch the TCP-offload technology until the suit is over.
"They could settle and just pay these guys and that would end it," said Jeff Norman, an intellectual property attorney in the Chicago office of Kirkland & Ellis LLP. "Beyond that, any other option would be at least six months to two years."
Microsofts possible paths include appealing the injunction, which would take at least six months to resolve, or bringing the case to trial. Although some suits proceed through trial faster than they do through an appeal, it is more likely that Microsoft would be looking at about two years before a decision is reached through that method, Norman said.
Norman said that he believes that Microsoft will choose to appeal, and if the injunction is too broadly worded, the company could ask the appellate court to put the injunction on hold until the appeal is resolved. That would give developers time to keep working on Chimney in the hope that the suit will be finished before the release date. Otherwise, Chimney could appear later in a service pack rather than with Longhorn.
If the appellate court were to turn down the request, however, the company would need to find an alternative to Chimney, and be very cautious not to touch any of the code associated with it.
Microsoft has not stated whether it will choose to appeal the injunction.