Microsoft Appeals Against Texas Word Case

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Microsoft files its appeal brief in a patent-infringement case that could see copies of Microsoft Word pulled from stores

Microsoft filed an appeal on 25 Aug in a patent-infringement suit that threatens to yank copies of Microsoft Word from store shelves and force the company to pay hundreds of millions of dollars in fines. The issue centres on Word’s alleged usage of custom XML covered in a patent held by i4i, a small Canadian company.

“This is not justice,” read the preliminary statement of Microsoft’s 101-page brief, referring to the verdict delivered by the U.S. District Court in East Texas on 12 Aug.

The brief stated that the judge in the case failed in his function as a “gatekeeper” and accused the court of accepting “manipulated” surveys of infringing use, erring “in its interpretation and application of the law,” and failing to recognise the validity of Microsoft’s defence.

In a head-on attack against Microsoft’s accuser, the preliminary statement suggested that i4i failed to corroborate its creation date for the technology behind the patent.

“After Microsoft invoked the on-sale bar with the investor’s prelitigation statements that showed his invention to have been ‘implemented’ and sold before the critical date, the inventor insisted that he had lied to investors about his presale invention date and that the invention really came later,” the statement read. “In the absence of corroboration, an inventor’s manifestly self-interested testimony should be insufficient as a matter of law to save his patent.”

In an interview with eWEEK, i4i Chairman Loudon Owen insisted that the case be framed in David-and-Goliath terms.

“This is a vital case for inventors and entrepreneurial companies who, like i4i, are damaged by the willful infringement of their patents by competitors; particularly competitors as large and powerful as Microsoft.”

Despite its size, Microsoft could be left with very few options when it comes to the case. Although analysts have suggested that a technological workaround could allow Word to sidestep the lawsuit, statements from both Microsoft and outside observers indicate that altering the XML code to avoid the patent would be a massive undertaking with regard to cost and programmer hours. Microsoft could also potentially settle out of court, although Owen has indicated that i4i intends to see the case to the bitter end.

“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,” Owen told eWEEK. “We’re not in a position to guess or second-guess or speculate as to what the court is going to do.”