Microsoft hits back at i4i ruling claiming that the verdict is 'not justice'

News by Dan Raywood

Microsoft has claimed that the ruling that prevents it from selling Word is not justice as it has won the right to a fast track appeal.

Microsoft has claimed that the ruling that prevents it from selling Word is not justice as it has won the right to a fast track appeal.

In a 100-page brief for the defendant, the company claimed that the £175 million damages it has been ordered to pay to i4i are unreasonable and that an i4i survey the court used to decide that amount was flawed.

The brief states: “This is not justice. If district courts are free to admit theories of infringement that nullify a patent's claim terms, specification, prosecution history and title; if they allow an inventor to validate his patent by testifying without corroboration that he lied about the date of conception; if they will not intercede to preclude manifestly unreliable - indeed, concededly manipulated - surveys of infringing use ... then patent litigation will be reduced to a free-for-all, unbounded by the requirements of the substantive law or the rules of evidence or trial procedure.”

It also claimed that the ‘case concerns a technology called markup languages' but ‘at its most basic level, a markup language is a way of indicating how text should be displayed - which words are in boldface, for example, or what should be centred, or where line breaks should appear'.

It states: “The '449 Patent does not claim to have invented any markup languages. Rather, markup languages for computers have existed and, indeed, have been standardised for decades. Computer programs for creating and editing these markup languages also have existed for decades, including one sold by the inventors of the '449 Patent before the critical date - called SEMI S4 - as well as programs disclosed in two other prior-art references, Rita and DeRose.

“None of this prior art was before the Patent Office at the time of the prosecution, but the latter two references are now before the Patent Office on re-examination, which has resulted in an initial rejection of the '449 Patent.”

In the summary of argument, it claimed that the judgement rests on several errors of law that it believes the district court has made, and should be reversed or vacated.

It claimed that the call for $200,000,000 in damages was based on an “inherently unreliable ‘survey', which posed unanswerable questions, extrapolated millions of alleged users from only 19 paid respondents, and was riddled with inconsistent answers ‘corrected' (i.e., changed) by the surveyor”. The district court allowed i4i's damages expert to base his entire damages model on this.

It states: “Whatever losses i4i might have proved, they all occurred in the past and can be adequately remedied by monetary relief. Meanwhile, the losses that Microsoft faces from disruption of its flagship Word and Office products - of which the accused functionality is only a tiny fraction, with few users - would be irreparable and immediate.”

I4i Chairman Loudon Owen told seattlepi.com that its patent is valid, and “that was found at the trial. We believe it will continue to be found as a valid patent.”

Speaking about the statement, Owen said: “The appeal brief filed by Microsoft is an extraordinary document. It captures the hostile attitude of Microsoft toward inventors who dare to enforce patents against them. It is also blatantly derogatory about the court system.

“We sought and received the protection of the court so we can compete on a level playing field, and run our business without infringement by the defendant Microsoft. Microsoft was proven to have wilfully infringed on i4i's patent. We firmly believe the decision of the jury and judge in the United States District Court for the Eastern District of Texas was correct on the facts and we shall prevail on appeal.”

Microsoft was also celebrating after a panel of federal judges granted its request for a fast-track appeal of the injunction that prohibits the company from selling its popular Word software after the 10th October.

After filing the brief yesterday, a response brief from i4i is due on the 8th September, while Microsoft's reply to that must reach the court by noon on 14th September. An oral hearing is slated for 23rd September, less than three weeks before the injunction is to take effect. The Court of Appeals will render its verdict on Microsoft's motion at some point after that, according to Computer World.

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