Microsoft appeals for stay of Word injunction

Microsoft appeals for stay of Word injunction

Summary: In its "emergency motion," Microsoft asked an appeals court to halt an injunction that would force the company to stop selling Word and also to speedily hear the company's appeal, once it is filed.

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Microsoft on Tuesday asked an appeals court to halt an injunction that would force the company to stop selling Microsoft Word in its current form.

A judge last week issued an injunction that would force Microsoft to stop selling versions of Word with a custom XML function that a jury found infringes on a patent held by Canadian software maker I4i. The judge had ordered the injunction to go into effect 60 days after the ruling.

See also: Examine the patent that made selling Microsoft Word a crime

'Custom XML' the key to patent suit over Microsoft Word

In its "emergency motion," made Tuesday, Microsoft asked an appeals court to halt that injunction and also to speedily hear the company's appeal, once it is filed.

Microsoft said that it is trying to remove the functionality found to infringe on I4i's patents, but unless it can do so, it would be forced to stop distributing Word in the U.S. market. "Already, Microsoft is expending enormous human and financial capital to make its best effort to comply with the district court's 60-day deadline," Microsoft said in the appeals court motion.

The software maker said the injunction could potentially keep Word and even Office off the shelves for months. "Unless Microsoft is able to redesign Word and push that redesigned version through its entire distribution network by October 10th...Microsoft and its distributors (which include retailers such as Best Buy and OEMs such as HP and Dell) face the imminent possibility of a massive disruption in their sales," Microsoft argues in the court papers.

Microsoft's motion is expected to be assigned to a three-judge panel that would consider the request. The software maker is also expected to file its full appeal shortly. On Friday, Microsoft made a motion to the trial judge in the case to allow the company to appeal the verdict without having to post a bond.

As noted in our earlier coverage, Microsoft has several options, including seeking remedy from the courts, creating a technical workaround that ensures Word is not infringing on I4i's patent, and settling with I4i.

In Tuesday's filing, Microsoft noted that, in the period since the jury's verdict, the U.S. Patent and Trademark office has provisionally rejected the patent in question upon a reexamination and said that the company meets the standard for staying the injunction because it is likely to win its appeal, will be irreparably harmed by the injunction, that i4i won't be harmed by the stay and that the public will "face hardship" if Word or Office is absent from the market for any period of time.

Earlier this year, in the same patent case, a federal jury also awarded Microsoft $200 million in damages in the case. That amount, in part, was reached by determining that a reasonable royalty for the XML feature was $98 per copy of Word, a figure that Microsoft noted in Tuesday's court filing is more than the retail price of some editions of Word.

For its part, I4i chairman Loudon Owen said last week that his company isn't seeking to crush Word, but rather just to get Microsoft to stop infringing on his company's patents. Owen declined to say what, if any, settlement talks have been taking place between the two companies.

In a statement Tuesday, Owen added that the appeal was "fully expected given the significance of the case and the flagship status of Microsoft Word to the defendant. I4i will continue to vigorously enforce its patent," he added. "We firmly believe the jury verdict and judgment were both fair and correct and we have been vindicated through this process."

Microsoft spokesman Kevin Kutz added the following statement:

Today, Microsoft filed a motion with the Court of Appeals for the Federal Circuit to seek an expedited review of its appeal and to stay the permanent injunction while the appeal is pending. These filings are not unusual in patent cases. As we've maintained throughout this process, we believe the evidence clearly demonstrates that we do not infringe and that the i4i patent is invalid. We look forward to filing our appeal and to Court of Appeals review.

This article was originally posted on CNET News.

Topics: Collaboration, Legal, Microsoft, Software

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49 comments
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  • here for you MS

    its time to taste your own med (bitter isnt it )

    I just hope that MS will suffer the max this time
    Quebec-french
    • No, they will not

      Sorry, but Microsoft hating does not change the fact that this is far from over. Interesting case this is:

      http://blogs.zdnet.com/BTL/?p=22595

      And it is quite odd that you would be against software patents when Microsoft holds them, but all for them when someone else does.

      It is also interesting that this was held in Texas, when neither Microsoft, nor the company who is making the claim are based there.

      Maybe it is about time people actually write software they file a patent for, and not just place a generic "thought" on file and look to extort money from other companies.

      Or is that an accepted behavoir in Quebec?
      GuidingLight
      • I would usually agree with you but

        i4i actually has a product that does this for
        Word, and Microsoft integrating this feature into
        their product cannibalizes it. I'm not a
        Microsoft hater, actually quite opposite.
        bmonsterman
      • I think.....

        Groklaw is covering this case far better. That blog is rather shallow.
        Economister
      • it as nothing to do with behavior

        its just pay back with a vengeance ... MS cause so much trouble over its long and powerful plow of everything .... if for once they could get it in the face so hard the they would feel it for the rest of there long life it would bre nice ......

        Like i said it more about pay back with a vengeance more that copy right or anything ...just good old clean vengeance.
        I hope they get it
        Quebec-french
  • Microsoft didn't mention this when they should have!

    Great day for Open Office - i4i said it has looked at OpenOffice and found it doesn?t infringe on its patents. Oh dear. Poor Microsoft.

    From Groklaw -
    http://www.groklaw.net/article.php?story=20090817235436439

    "I have a question for Microsoft. Why didn't they tell us about this i4i patent litigation during the OOXML ISO process? Didn't we need to know?

    Anyone recall anyone mentioning an i4i patent that could make customXML unusable in the entire United States?

    The litigation began on March 8, 2007 when i4i filed its complaint. That is back in the very earliest days of the OOXML saga, when Ecma was answering some critics inside the ISO process who thought Ecma 376, later to be named OOXML, shouldn't be put on the fast track. It was officially put on the fast track by ISO a couple of days later anyhow. Remember all that? That's pretty much how OOXML got to be a standard, actually, I'd say, in microcosm. Techies pointed out issues, and some higher up would say, So what? Over and over and over. Until it was over. And now look what you've got. You should listen to techies, folks, when the issue is tech.
    whisperycat
    • I don't think this has anything to do with OOXML

      I don't think the phrase 'Custom XML' is related
      to the OOXML standard. It's the ability for users
      to define their own custom schema within the
      context of word documents. OOXML is independent
      of Custom XML. In other words, 'custom xml' could
      be removed from word without affecting the OOXML
      standard.
      bmonsterman
      • Hard to say

        ... without a thorough legal analysis of the 7000+ page spec. However, the string "customXML" (no space) occurs 1030 times in IS-29500
        Yagotta B. Kidding
        • According this blog post it is

          Mary Jo-Foley quotes a microsoft guy.

          http://blogs.zdnet.com/microsoft/?p=3712

          bmonsterman
  • RE: Microsoft appeals for stay of Word injunction

    Good for Microsoft. The injunction was bogus anyway as well as that patent. I can't wait for Microsoft to counter sue i4i for the same amount of money. They would be broke and out of business so quickly they won't realize what hit them. As I've said in the past, everyone needs Microsoft to win the appeal if you ever want to use any type of office suite again.
    Loverock Davidson
    • The only way this can be bogus

      is if ALL software patents are bogus. And on that I agree, because software is more than adequately protected via copyright and trademark laws.

      However if you are to argue that even SOME software patents are legit, then I cannot see how one could argue that this one is not legit. This was quite an original idea at the time, and I do not see any evidence of prior art.
      Michael Kelly
      • Some patents are OK

        But this one is not, and the fine that Microsoft received was outrageous. There is no way they could owe that much money to such a small company.
        Loverock Davidson
        • A patent holder can charge whatever they want

          I4i did not pressure MS into violating their patent. MS made a conscious choice to use custom XML in Word and did not do their homework to see if they were legally permitted to.

          Now I agree the law stinks, but the law is the law and it applies to everybody no matter how big or small. I also believe the law stinks with regard to DRM on DVDs and music, but the law is the law and I abide by it.
          Michael Kelly
      • Let me explain Loverocks clearly reasonable....

        argument.

        MS enforces a patent and sues: Obviously valid and everyone sees the evidence to support this but if you don't it is because you are so blinded by ABM zeal that you can't see the truth.

        Another company enforces on a patent and sues MS: Obviously invalid and everyone sees the evidence to support this but if you don't it is because you are so blinded by ABM zeal that you can't see the truth.


        Get use to disappointment if you believe that LD will substantiate the reasons for his self proclaimed authoritative and professionally respected statements.
        Viva la crank dodo
        • read the original patent then

          The thing is so vague (could actually describe a number of external organisers, CSS being the prime example) that just about [i]anyone[/i] could have violated it and been completely unaware of it. Add to that the fact i4i sat quietly for several yrs before notifying MS raises serious questions for the unjaded!

          Also consider that all they patented was an open-ended concept, with no actual application/software architecture making actual usage of this concept. it would be the equivalent of someone 20yrs ago envisioning controlling the "visual user-interface of an electronic or user-interfaced computer-type device (remembering the OS as we know it did not exist 20-odd yrs ago) via touch-control", then first going after the manufacturers of scroll-pads/touch-pads, then those developing touch-screens two decades later.

          The fact that ANYONE can patent an undeveloped idea is beyond absurd!
          kaninelupus
          • Yea...

            [i]The thing is so vague (could actually describe a number of external organisers, CSS being the prime example) that just about anyone could have violated it and been completely unaware of it.[/i]

            I mentioned that in post on some of the original articles on here. A lot of mised views on if that is true or not, but when I read the patent it seemed so vague they could lay claim to CAD files being used to hold data seperate from the structure.

            [i]Add to that the fact i4i sat quietly for several yrs before notifying MS raises serious questions for the unjaded![/i]

            Really. You file a patent in the mid 90's and then file a suit more the 10 years later? Either the legal team needs to be fired, or this screams thin ice. It's not like they didn't know it was going on, as they CEO of i4i claims they actually USE MS Office at their work. Right in front of them for 10 years.

            [i]Also consider that all they patented was an open-ended concept, with no actual application/software architecture making actual usage of this concept.[/i]

            They actually do claim to have a product that uses it. However, it doesn't compete with any Microsoft product, as they can't claim it hurt their market. Their big claim is that they didn't receive profits from it. They are charging $98 per copy of Word for this "technology." Some versions of Word don't even cost $98, and on top of that, the code in question was a plugin originally, and doesn't constitute the main technology behind Word. So where do they get off acting like they power Word with this outrageous royalty?

            If anything, they have hurt their business, because other companies now see them as price gougers, and trigger happy. It is always in the best interest on both sides to settle for PR reasons. It shows that you're willing to work and keep everyone happy. If they succeed and stop the sales of Word, their will be a lot of unhappy people that at least a good portion of will blame i4i. Sure MSFT infringed knowingly, but i4i could have worked harder to reach a settlement. It's not like MSFT hasn't settled in the past.

            [i]The fact that ANYONE can patent an undeveloped idea is beyond absurd![/i]

            Generally one is supposed to prove they can make it work. With a patent this vague, their is no way it couldn't work. In fact, everyone has made it work in several different formats, from XML to CSS to scripting. Unless I missed something in that patent, or saw somethign that wasn't there, more then 60% of software violates it in someway. All it takes is a liberal judge, and a fast talking lawyer. Obviously i4i found both.

            None of this removes the fact that MSFT is looking really guilty, but of what I'm still not sure. At this point, I trust i4i as much as I do MSFT (as far as I can see them). And I don't believe everything I see either.

            ShadowGIATL
    • You do realize of course...

      That i4i has already publicly stated Open Office does not violate the xml patents in its implementation.

      Or is that little piece of publicly available detail to difficult for you to find.

      Perhaps you have evidence that "any type of office suite" would be affected should MS lose? Of course not as you may get a rash.
      Viva la crank dodo
    • You must of course realize...

      That your pontificating on Microsoft's behalf is going to doom them in the courts don't you?

      You after all are batting 100% with your "Microsoft will win" comments when they in reality lose.
      zkiwi
      • Do you think we are both...

        fooling ourselves thinking that he realizes these things?
        Viva la crank dodo
        • Well...

          It doesn't bother me what he thinks or not. It's kind of amusing replying to him. Oddly enough, it helps me with some of the weirder problems with work.
          zkiwi