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Microsoft files notice of appeal against i4i ruling; stipulates waiver of bond, begs for stay
Tuesday, August 18 2009 @ 10:33 PM EDT

Microsoft has filed its notice of appeal in i4i v. Microsoft. And it and i4i have agreed on some terms. We find out from a Declaration of Albert Damon, attached to the stipulation, that Microsoft says it "has the financial wherewithal to satisfy the Judgment" and it will pay it within fifteen days "of all appeal and remand proceedings (including any proceedings before the Supreme Court of the United States), or within 15 (fifteen) days of the expiration of the times fr initiating such proceedings".

So, in return for Microsoft's verification of this promise and capacity, i4i agrees Microsoft doesn't have to post bond pending the appeal. It agrees that Microsoft can let it know periodically if anything changes that would compromise its ability to pay.

So, the mystery about the waiver of the bond is solved. And as we all know, Microsoft's word is its bond. The Register has the "nonconfidential" version of Microsoft's Emergency Motion to Stay Permanent Injunction Pending Appeal [PDF]. Microsoft's main arguments are that Microsoft will likely win on appeal, that it and its distributors will suffer "irreparable harm" unless there is a stay on the injunction, that there is no irreparable harm to i4i, and that "public interest favors a stay." It seems the sky is falling, or it will fall, if patent law, in particular the injunction, is applied to Microsoft fully and this exact minute. Well, in 60 days.

Here are the filings:

08/18/2009 - 416 - Unopposed MOTION re 414 Judgment,,,,, Microsoft's Unopposed Motion To Enter Stipulation As Order by Microsoft Corporation. (Attachments: # 1 Exhibit 1 - Stipulation)(Kudlac, Kevin) (Entered: 08/18/2009)

08/18/2009 417 NOTICE by Microsoft Corporation re 415 SEALED MOTION Microsoft's Emergency Motion To Stay Execution of Judgment and Waive Bond Requirement Microsoft's Notice of Withdrawal Of Emergency Motion To Stay Execution Of Judgment And Waive Bond Requirement (Kudlac, Kevin) (Entered: 08/18/2009)

08/18/2009 - 418 - NOTICE OF APPEAL - PATENT CASE as to 414 Judgment,,,,, by Microsoft Corporation. Filing fee $ 455, receipt number 05400000000002118345. (Attachments: # 1 Exhibit A)(Kudlac, Kevin) (Entered: 08/18/2009)

The text of the stipulation, attached as Exhibit 1 to #416, reads as follows:

*******************************

STIPULATED ORDER ON EXECUTION OF
JUDGMENT AGAINST MICROSOFT

The parties have agreed as follows:

A. Microsoft will not be required to post bond or other security pending appeal. Plaintiffs have agreed to accept the verification of Exhibit A to this Stipulated Order as sufficient evidence of Microsoft’s present ability to satisfy the Judgment in this matter.

B. Microsoft further agrees (i) to provide updated verifications, in the form of Exhibit B hereto, to Plaintiffs on a quarterly basis, confirming Microsoft’s continuing ability to satisfy the Judgment in this matter and (ii) to report to Plaintiffs, in the form of Exhibit C hereto, within seven (7) days of the Company’s determination that its ability to satisfy the Judgment is compromised.

C. Microsoft agrees that, as provided in Exhibit A, Microsoft will pay within 15 (fifteen) days of the completion of all appeal and remand proceedings (including any proceedings before the Supreme Court of the United States), or within 15 (fifteen) days of the expiration of the times for initiating such proceedings, any payments then due under the Judgment.

D. In reliance on the certification of Exhibit A and Microsoft's obligations in paragraphs B and C immediately above, Plaintiffs agree that they will not execute before 15 days after the mandate issues as provided in paragraph C.

E. Any party can move the Court for modification, failing agreement between the parties on such modification, under any circumstances which that party deems sufficient to justify modification.

Signed and agreed as to form and content:

Dated: August 18, 2009

By: signature
Douglas A. Cawley (Lead Attorney)
[email]
Jeffrey A. Carter
[email]
McKOOL SMITH P.C.
[address, phone, fax]

T. Gordon White
[email]
McKOOL SMITH P.C.
[address, phone, fax]

Attorneys for Plaintiff i4i LP and
Infrastructure for Information Inc.

By: signature
Matthew D. Powers (Lead Attorney)
CA State Bar No. 104795
[email]
WEIL GOTSHAL & MANGES LLP
[address, phone, fax]

Kevin Kudlac
State Bar No. 00790089
[email]
Amber H. Rovner
State Bar No. 09223750
[email]
WEIL, GOTSHAL & MANGES LLP
[address, phone, fax]

Attorneys for Defendant Microsoft
Corporation

SO ORDERED


  


Microsoft files notice of appeal against i4i ruling; stipulates waiver of bond, begs for stay | 78 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
..crroections -> Corrections thread
Authored by: arnt on Tuesday, August 18 2009 @ 10:38 PM EDT
.

[ Reply to This | # ]

..news picks discussions
Authored by: arnt on Tuesday, August 18 2009 @ 10:40 PM EDT
.

[ Reply to This | # ]

..the OT [Off Topic] Thread
Authored by: arnt on Tuesday, August 18 2009 @ 10:43 PM EDT
.

[ Reply to This | # ]

Has i4i received money?
Authored by: bbaston on Tuesday, August 18 2009 @ 11:10 PM EDT
Not understanding how the awards are distributed or when, it sounds as if i4i has deferred some receipt of funds. How/when do monies flow here? What's the thinking of i4i in agreeing to MS bonding itself? Thanks in advance!

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

..the Official Position of Microsoft Corporation thread. ;o)
Authored by: arnt on Tuesday, August 18 2009 @ 11:18 PM EDT
..this thread space is for the Official Position of
Microsoft Corporation. That means their C level
executives, board members, lawyers, major share holders etc
are hereby cordially invited to state their Official
Position on whatever they like as they see fit, as long as
they state their name, and position of authority within
Microsoft, to qualify their statement of the Official
Position of Microsoft Corporation.

..so grokkers, trolls, astroturfers etc, go play law
shark in the pond under that bridge in the troll threads
instead, not here, and kindly hone your style and finesse
in packing the red herring etc schools nice-n-tight so you
can slice them into subtle tints with the style and
finesse we expect here, or PJ will mow you outta this
thread with her shiny new scythe. ;o)

[ Reply to This | # ]

Cabn they argue impact on their distributors?
Authored by: Anonymous on Wednesday, August 19 2009 @ 12:54 AM EDT
... its distributors will suffer "irreparable harm" unless there is a stay ...
Is this actually allowed? Microsoft's distributors aren't party to this case.

[ Reply to This | # ]

financial wherewithals
Authored by: IMANAL_TOO on Wednesday, August 19 2009 @ 01:33 AM EDT
I don't automatically have respect for companies or people with financial
wherewithals. That view didn't change with this article.



---
______
IMANAL


.

[ Reply to This | # ]

"public interest favors a stay"
Authored by: Anonymous on Wednesday, August 19 2009 @ 01:43 AM EDT
Oh please. The only people harmed would be Microsoft and its distributors. The
great MS Office -using public would not be affected much. Either they already
have the disputed version and can realistically go on using it, no matter what
happens in the litigation (because i4i is unlikely to start demanding they be
destroyed) or they are using an older version. Anyone needing a legit copy of a
word processor for a new computer can download OpenOffice.org, or (if
proprietary software is desired) purchase from Microsoft's competitors, if any
still remain (isn't WordPerfect still around?)

Microsoft seems to be painting its own interest as equal to the public interest,
"What is good for Microsoft is good for America"...

[ Reply to This | # ]

"Will likely win on appeal"
Authored by: Anonymous on Wednesday, August 19 2009 @ 01:46 AM EDT

Microsoft's main arguments are that Microsoft will likely win on appeal,

We saw this from SCO and I wondered about it then. But at least, SCO was saying it to a different judge than the one who made the original judgement. This time, Microsoft is saying in effect, "Your decision is rubbish, judge, and will obviously be overturned by a competent judge".

IANAL, but I thought that after a judgement is made, any further proceedings (including an appeal) start from the presumption that the judgement is correct. At the appeal it is possible to present material to rebut that presumption, but that's the starting point. So how does it make any sense to state that "Microsoft will likely win on appeal"? Until that appeal has actually been decided, all courts must presume that Microsoft will lose on appeal, no?

[ Reply to This | # ]

This is just posturing and sabre rattling
Authored by: TiddlyPom on Wednesday, August 19 2009 @ 04:44 AM EDT
Nothing to see guys, just move on. Either:

1) Microsoft will pay for a license from i4i and continue to sell Word (or)

2) Microsoft will issue a service pack which will temporarily disable OOXML
(which hardly anybody uses anyway) whilst they rewrite it to not use Custom
XML.

Although I view Microsoft as a non-ethical company (personal opinion) with how
they treat the competition, I think that they are now starting to feel the pain
of software patents as the rest of us do. If they (Microsoft) and other
companies competed on TECHNICAL MERIT (as they used to do) i.e.

"Hey Guys - here's a new version of Word with all these new wizzy features
- and it costs less too!"

then none of this would happen. Microsoft do not deserve to be attacked by
companies wielding software patents either - as software patents should not
exist and are very bad for the industry.

---
Microsoft Software is expensive, bloated, bug-ridden and unnecessary.
Use Open Source Software instead.

[ Reply to This | # ]

includes trialware too
Authored by: nola on Wednesday, August 19 2009 @ 07:44 AM EDT
Reading the injunction, it would seem that it applies
also to the "free trial" versions of Office that MS
gets PC vendors to preload.

Changing all those production images will be
a *real* pain. Especially when those folks are
juggling the switch to Win 7 at the same time.

[ Reply to This | # ]

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