AmiCOUR IP Group News and Opinions

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December 16, 2009 - If you didn’t get the word, perhaps it was because the i4i v. Microsoft case hasn’t received the same media attention as the high profile NPT v. Rim wireless email case.  Nevertheless, the accused product, Microsoft Word software using XML, affects billions of documents and hundreds of millions of users. On May 20, 2009, a Marshall, Texas jury issued a two page verdict that Microsoft willfully infringed upon claims 14, 18, and 20 of USPN 5,787,449. The patent, officially assigned to Toronto based "Infrastructures for Information Inc.," teaches and claims a "Method and system for manipulating the architecture and the content of a document separately from each other." The idea is to have tagged data in one place and a document framework managed separately. Despite Microsoft’s scrambling to get a new trial following the verdict, a two page August 11, 2009 Permanent Injunction gave Microsoft 60 days to stop the sale of Word 2003, 2007 and “Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007 (collectively “Infringing and Future Word Products”).”  The accompanying judgment included $200 million for infringement, $40 million enhanced damages “because Microsoft’s infringement was willful,”  pre-judgment interest of $37 million, post verdict damages of $144K per day, and post judgment interest of $21K per day. With an October 10 shutdown looming, Microsoft attorneys filed an emergency appeal arguing the widespread disruption likely to result. Indeed. Before the end of August, the case was officially in the process of being sent up to the USCA. The injunction was stayed, ending the immediate crisis. Judge Kimberly Moore questioned the damages assumption that assumed a customer would have paid a price several times higher in order to purchase a properly licensed version. On the other hand, Judge Alvin Schall expressed skepticism towards the idea that nobody at Microsoft had ever read the ‘449 patent. In the meantime, as the ‘449 patent headed for reexamination, i4i became armed with a new Texas District Court order assuring that i4i’s counsel, McKool Smith P.C., and its technical expert, Dr. Thomas Rhyne, would be permitted to join the USPTO reexamination interview process and participate in responses.  Microsoft had objected to the expert’s participation based upon an earlier protective order.  McKool’s successful 16 page motion to keep its expert involved argued, “Microsoft is wrong.”  Read comments.