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Microsoft Files Emergency Motion to Stay Execution of Judgment in i4i
Sunday, August 16 2009 @ 08:00 PM EDT

Microsoft on August 14th filed a sealed motion, in response to the August 11 judgment and injunction against it in i4i v. Microsoft. I can't show you a sealed motion, obviously, but here's the docket entry, to at least give you a clue:
415 - Filed & Entered: 08/14/2009
Sealed Motion
Docket Text: SEALED MOTION Microsoft's Emergency Motion To Stay Execution of Judgment and Waive Bond Requirement by Microsoft Corporation. (Attachments: # (1) Exhibit A - Damon Declaration, # (2) Text of Proposed Order)(Kudlac, Kevin)
I've been seeing a lot of experts saying how easy it will be for Microsoft to work around the ruling, but I gather Microsoft is of a different opinion.

If you recall, there was a final judgment [PDF], which referenced an injunction, and then separately there was a permanent injunction [PDF], which set forth the terms.

By stay of judgment, then, I assume they are referring to the first item, about the money Microsoft is supposed to pay i4i, but it's not clearly the case, in that the judgment includes reference to the injunction.

Microsoft is the sealing-est litigant ever. Even the exhibits attached to Microsoft's motion are sealed, including the proposed order, so all we can do is guess. Here's mine: Microsoft would like a stay on paying the money, while it appeals, and so would you want that. Whether it gets it from East Texas... well, stay tuned.

It's impossible for me to know from just this entry if it also asks for a stay of the injunction. I would, if I could, if I were Microsoft. But Patently O says you can't get a stay of an injunction easily, that there is no automatic right to a stay on that:

Stays pending appeal: Under the Federal Rules of Civil Procedure, Microsoft has a right [to] obtain a stay of relief pending appeal after it posts an appropriate bond. However, that right only applies to monetary damages. There is no right to stay injunctive relief pending appeal. On occasions, both District Courts and the Federal Circuit will stay injunctive relief pending the outcome of an appeal.

Like I say, this is all guesswork, but my point is this: to anyone out there thinking that Microsoft won't fight, I think this indicates that it will. One way, obviously, is by an appeal, and that's the big-picture significance I get from this filing, particularly the request for waiver of a bond. I think it is confirmation that when Microsoft said it would appeal, it meant it.

Speaking of opinions about this litigation and the underlying patent claims, Rob Weir has a great piece on how not to read a patent. Thanks to the CC license, I can reproduce it here. He mentions something called a Markman hearing, in connection with explaining how to interpret claims. In this case, there was a Joint Claim Construction and PreHearing Statement [PDF], that will at least give you a ballpark idea of what he's talking about. Of course, some of you should avoid reading about this or all patents, so I'm providing it only for those who are free to explore.


How Not to Read a Patent, by Rob Weir

There is perhaps no occasion where one can observe such profound ignorance, coupled with reckless profligacy, as when a software patent is discussed on the web. Note the recurring pattern, which is repeated every two weeks or so. A patent issues, or a patent application is published or patent infringement suit is brought, and within minutes the web is full of instant pundits, telling us what the patent covers, how it should not have been granted, how it is entirely obvious, or how it applies to everything in the world, and how it presages a self-induced mutually assured destruction that now leads us on to the plains of Armageddon. If I had a nickle for every time this happens...

By way of disclaimer, I am not a lawyer, but I am blessed that my self-avowed ignorance in this area is coupled with a certain knowledge of the limits of my understanding, a handicap seemingly not shared by many other commentators. I know what I do not know, and know when to seek an expert.

In the past few days we have had a bumper crop of pontification on the significance of two XML-related patents, one nelwy issued to Microsoft (7,571,169), and another older one (5,787,449) owned by i4i, whose infringement has resulted in a large judgment and injunction against Microsoft. I've found the web coverage of both patents to be an unmitigated muddle.

I'm not going to comment on the merits of either one of these patents, but I'd like to make a few basic observations that may be of some assistance to those who comment on future patent issues.
  1. A patent has a description known as the "specification". And it has a list of numbered "claims". Although the specification can define terms that are then referred to in the claims, it is the granted claims that define the scope of the patent, not the specification.
  2. If all you do is read the abstract and the first few paragraphs of a patent, then you may know the general topic of the patent, but you do not really know its scope. If you then go off and cry, "Oi vey, this patent covers XHTML, SVG, RDF, Pringles and Obama Healthcare Plan" then you do your readers a disservice. You must parse the very specific and often obtuse language of the claims in order to understand exactly what a patent covers. There is no short cut. This is not like a book where you can understand the plot by reading the back cover. But over and over again, I see people who just read the abstract, maybe glanced at a diagram, and then feel equipped to hold forth at length on the substance of the patent.
  3. When you try to understand patent claims, you will encounter a dense form of legal English. Claims are not written for a layperson and do not presume that you will understand it easily. The drafting of patent claims is a black art, like writing device drivers, and if you are not versed in its intricacies, then your statements on any given patent are apt to be wide of the mark. Claims are full of magic words. Know what you do not know. If you do not recognize at sight and know the interpretation requirements of a means-plus-function claim (which is key in the '449 patent), or you are not crystal clear on the distinction between the verbs "consist" and "comprise", then you probably should not be the first (or loudest) person to speak on what a patent claims.
  4. If you are reading an application, know that during the "prosecution" of that patent, when it is reviewed by the USPTO, some of the claims of the patent may be thrown out, for any of several reasons, including prior art identified by the examiners. However, the specification of the patent is unlikely to change much. So an issued patent often has a very broadly-written specification, that covers the entirety of the originally claimed invention, though the the issued patent might have only a subset of the original claims allowed. So if you are have an issued patent and you look at only the specification, you can easily be fooled into thinking it covers far more than it does. For example, the '169 patent from Microsoft had half the original claims thrown out in the prosecution. If you don't know that and are reading only the specification, not the granted claims, then you will incorrectly think the patent is far broader than it actually is.
  5. Know what a priority date is, and how that is affected by a continuation. I've read all sorts of nonsense based on not appreciating that. Take a look at the '169 patent, for example. It says it was filed in 2004. But if you look closely you see it was a continuation of a 2002 application. You can moan and groan all you want about prior art, but if you don't get your dates right you're off to a bad start in your analysis.
  6. In an infringement suit, like with the '449 patent, be sure to look at the actual court record. Typically there is a Markman (claim construction) hearing, where the court will determine the meaning of terms used in the patent claims. If you have not read the court's claims construction opinion in the i4i versus Microsoft case, then your commentary is uninformed by probably the most important document in this case (well, next to the patent itself).
Well, that's enough for tonight. Repent. Sleep on it. And realize that making sense of a complex patent takes time, if you're going to do it right. Ergo, the first impressions you read from the instant pundits on the web will tend to be shallow, imperfectly informed and often wrong. Heck, even everything I said in this post may be wrong.


Microsoft Files Emergency Motion to Stay Execution of Judgment in i4i | 161 comments | Create New Account
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Microsoft Files Emergency Motion to Stay Execution of Judgment in i4i
Authored by: Anonymous on Sunday, August 16 2009 @ 08:04 PM EDT
"Well, that's enough for tonight. Repent. Sleep on it. And realize that
making sense of a complex patent takes time, if you're going to do it right.
Ergo, the first impressions you read from the instant pundits on the web will
tend to be shallow, imperfectly informed and often wrong. Heck, even everything
I said in this post may be wrong."


PJ, you rawk ;)

[ Reply to This | # ]

Off Topic
Authored by: Kilz on Sunday, August 16 2009 @ 08:17 PM EDT
Please make all links the clicky kind.

[ Reply to This | # ]

Authored by: Kilz on Sunday, August 16 2009 @ 08:19 PM EDT
Please place all mistakes you find here so they may be corrected.

[ Reply to This | # ]

Reading Claims: hints on language
Authored by: tce on Sunday, August 16 2009 @ 08:50 PM EDT
Here, at Brown & Michaels is found this definition of "comprising" & "consisting", ...and lots more.
By use of the connecting or transition word "comprising" ("open" language), the claim says, "the device has at least these things, but might have other things also." Other connecting words have other meanings - for example, if what was claimed was a motor vehicle "consisting of" the list ("closed" transition language), then the motor vehicle would have that list and nothing else. A car having the listed elements and seats would not infringe.

[ Reply to This | # ]

[NP] News Picks Discussion
Authored by: Aladdin Sane on Sunday, August 16 2009 @ 08:54 PM EDT
Discus Groklaw News Picks.

For a successful technology, reality must take precedence over public relations, for nature cannot be fooled. --Richard Feynman

[ Reply to This | # ]

Question on continuations
Authored by: wvhillbilly on Sunday, August 16 2009 @ 10:01 PM EDT
If a patentee gets continuations on a patent for say 20 years, then gets it
issued, how does prior art affect it? In other words, up to what point can
prior art be used to invalidate that patent, a year before the original
application or a year before the final continuation or to some other point?

Seems to me if it is only up to a year before the original application a
patentee could use that to do a Jerome Lemelson, watch others develop their
technology, add claims in his patent covering that technology, have it issued
and be immune to the prior art he just patented, even if it predated issuance of
the patent by 10 years or more.

Or am I missing something?

Trusted computing:
It's not about, "Can you trust your computer?"
It's all about, "Can your computer trust you?"

[ Reply to This | # ]

Microsoft Files Emergency Motion to Stay Execution of Judgment in i4i
Authored by: sgtrock on Sunday, August 16 2009 @ 10:27 PM EDT
PJ said:
I've been seeing a lot of experts saying how easy it will be for Microsoft to work around the ruling, but I gather Microsoft is of a different opinion.

The article she linked to says:

"The injunction doesn't apply to existing product that has already been sold," said Barry Negrin, a partner with the New York firm Pryor Cashman LLP who has practiced patent and trademark law for 17 years.

"Headlines that say Microsoft can't sell Word are not really true," said Negrin, pointing out that the injunction granted by U.S. District Court Judge Leonard Davis on Tuesday only prohibits Microsoft from selling Word as it exists now after Oct. 10. "All Microsoft has to do is disable the custom XML feature, which should be pretty easy to do, then give that a different SKU number from what's been sold so it's easy to distinguish the two versions."

PJ, were you being sarcastic and I just missed it? We're supposed to take the word of a PATENT ATTORNEY about a PROGRAMMING task???

Please. You know better than that.

[ Reply to This | # ]

On reading patents
Authored by: caecer on Sunday, August 16 2009 @ 10:36 PM EDT

On the down side, it is, I believe, presumed by the law that patents are written for those who are familiar with the topic area. So although everybody knows that patent claims are written arcanely, often using terms with specific meanings generally known only to patent lawyers who have worked on patents for years, the legal fiction is that patent claims are completely and fully comprehensible (without further instruction) to a patent-naive person who works in the field of the patent.

On the up side, this means that patents are often written by lawyers with no actual knowledge of the field in which they are writing. So they may make silly errors such that the claims may not be quite what the inventor thought.

[ Reply to This | # ]

How not to read this patent?
Authored by: leopardi on Sunday, August 16 2009 @ 10:46 PM EDT

OK, so I read the claims of US 6859816, "Fast Fourier transform method and inverse fast Fourier transform method", and notice that each claim describes a method, but nowhere is an apparatus mentioned. Now what?

  1. Where do I go to find out which of the claims has been granted?
  2. The only use I see of the word "comprising" in these claims is that most of the claims use this word to describe the steps of some method. Does that mean that any method which uses these steps and other steps would infringe the claim?
  3. For the purposes of this patent, what is the difference between the meaning of the word "method", and the common understanding of a mathematical algorithm such as the Fast Fourier Transform? Is a "method" here the same thing as an algorithm?
  4. Finally, what does it mean if claims only mention methods and do not mention an apparatus?

[ Reply to This | # ]

What Microsoft did is standard practice
Authored by: kawabago on Sunday, August 16 2009 @ 11:08 PM EDT
What Microsoft did was standard practice; see technology, steal it. It would
have worked too if the victim hadn't happened to be carrying a patent bomb.
Microsoft can't easily take the custom XML out without losing all the supposed
benefits of OOXML over ODF. I hope Novell and IBM start a big marketing
campaign about the patent liabilities you could be saddled with if you use
Microsoft products. After all, it's the Microsoft thing to do!

[ Reply to This | # ]

Why under seal?
Authored by: Anonymous on Monday, August 17 2009 @ 03:33 AM EDT
The point of patents is surely to benefit society as a whole, so why should MS
have anything to hide from society with regard to this patent?

Or is the point of patents not to benefit society as a whole?

Or is it just that MS doesn't like to be open with anything?

[ Reply to This | # ]

Not necessarily, PJ
Authored by: Anonymous on Monday, August 17 2009 @ 03:54 AM EDT

I've been seeing a lot of experts saying how easy it will be for Microsoft to work around the ruling, but I gather Microsoft is of a different opinion.

Microsoft may well share the opinion that it's easy to work around the ruling. It's just SOP nowadays for a wealthy litigant to file an emergency motion to stay, if the financial benefit from a stay would exceed the cost of filing for one.

It's not as though Microsoft were short of money to pay for lawyer time.

[ Reply to This | # ]

Microsoft Files Emergency Motion to Stay Execution of Judgment in i4i
Authored by: Alan Bell on Monday, August 17 2009 @ 05:59 AM EDT
From the computerworld article
"One of the four is that the public interest is not disserved with the injunction," said Negrin. Given the number of people who use Word and the degree of disruption to business that could occur if the product could no longer be purchased in two months, Microsoft might be able to make the case that the injunction does not serve the public interest. "That may depend on how Microsoft wants to paint how easy it is, or not, to change Word," Negrin continued.
I totally reject this possible argument. There would be no disruption to business. Those already in possession of a copy of the infringing product will suffer no impact. Those thinking of purchasing the infringing product will be able to make a choice from the selection of alternatives on the market. If Microsoft do go down this "public interest" route they will have to argue that they have an abusive monopoly that has locked businesses in to their product. It would certainly take some impressive legal tightrope walking not to make a spectacular error wriggling out of trouble through that route.

[ Reply to This | # ]

Microsoft Files Emergency Motion to Stay Execution of Judgment in i4i
Authored by: Anonymous on Monday, August 17 2009 @ 10:42 AM EDT
Microsoft slammed for trial misconduct

[ Reply to This | # ]
Authored by: ciaran on Monday, August 17 2009 @ 04:31 PM EDT

I've been building an anti-software patents wiki. I've a page for the i4i case and some related topics: itigation_and_specific_patents ki/Studies_on_economics_and_innovation

It's a publicly editable wiki, all help welcome.

[ Reply to This | # ]

"Microsoft is the sealing-est litigant ever."
Authored by: Anonymous on Monday, August 17 2009 @ 07:42 PM EDT
Maybe they do this because, even if they lose (eg, through a settlement),
nobody can tell that that ever happened; and they also will have, as part
of the settlement, that the winning party will not ever reveal the terms
of the settlement, or who really won?

[ Reply to This | # ]

Patents as a programming language
Authored by: Anonymous on Monday, August 17 2009 @ 08:18 PM EDT
I realised a while back that what patents are written is
not english but instead a form of programming language. It
has variables (created use the word "the", multiple
variables of the same type are referenced using "the first
N", "the second N" - boolean logic, but a different meaning
for the word "or" than english (inclusive and exclusive or
must be used in very specific ways) - subroutines (in the
way that claims reference other claims) etc etc

How much you get charged by the patent office depends on
the number of combinations of claims (subroutine calls) -
which is why recursion is not allowed

[ Reply to This | # ]

Am I the only one who thinks ...
Authored by: emmenjay on Monday, August 17 2009 @ 08:49 PM EDT
Am I the only one who thinks that this may not be evil? If the facts are as alleged, then
  • I4I developed a new technology
  • Microsoft stole it
  • I4I got compensated for it.
That kinda seems how it should work.

If I've read it correctly, the patent isn't strictly a software patent. It is more concerned with a technique for storing documents - i.e. a class of file formats. (BTW: they haven't tried to patent XML, as most of the slashdot crowd seem to think).

In the past I worked for a company who cooperated with Microsoft and had their technology allegedly stolen, with a "go ahead and sue us" from the Microsoft staff involved. We didn't have the money to sue them and the company no longer exists.

I'm not currently crying for Microsoft.

[ Reply to This | # ]

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