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The Dell amicus brief, PDF and text, HP's as PDF (i4i v. Microsoft)
Saturday, August 29 2009 @ 12:20 PM EDT

Seattle PI's Nick Eaton has provided the PDF of the Dell amicus brief, at last! Webster was going to run to the court today for us, when I saw journalists quoting from the brief but not giving us the PDF to read it for ourselves. We don't just want to know what reporters think is important. We want to know for ourselves what *we* think is important. For that, we need the PDFs.

Thank you, Seattle PI. However, the brief has been so heavily redacted, even reading the PDF doesn't give you much of an idea why Dell thinks the injunction would be disruptive. It asks in the alternative that the time to make necessary changes be extended to 120 days, if the court affirms the injunction, which seems a reasonable request depending on the harm i4i presents and is able to establish. The court tries to balance the equities. Somebody is going to be hurt in this picture, obviously.

And that's the problem with software patents, if you think about it. There were no software patents when Microsoft was building its business. Now, there are. Is it better? Or is it so massively disruptive it should never happen to anyone? Yes, it's irony indeed that it is Microsoft being stung, in that it has been threatening to do to Linux exactly what is now happening instead to Microsoft. And to the extent Microsoft has used that argument to gain a business leg up, any such advantage is now wiped away. It's now clear that patent troubles can happen to anybody. Absolutely anybody, no matter what you do or who you are or how hard you try to avoid it. And the results are so damaging, they shouldn't happen to anyone, not even to Microsoft, although heaven only knows it feels like reaping what it has sown to me.

It's strange that the US Court of Appeals for the Federal Circuit doesn't make these documents digitally available, in a case that Microsoft and Dell/HP say threatens to affect the public directly. I don't see in this brief any arguments or evidence that an injunction will affect the public, actually, just the businesses. We can continue to use the same software we used before the injunction, since i4i has chosen not to go after prior users. You can still use Microsoft Word if you like it. But since the argument is being made that the public is going to be affected, we naturally want to read the documents filed.

I hope the court changes its policy soon. No wonder people invent things like RECAP. My contribution to the public good is that I've done the amicus brief as text for you.

Update: There's another push to improve PACER, by a group of law librarians, who have a petition you can sign, if you are so inclined, here. They are asking for greater ease of use, authenticity of documents, and free access for libraries:

PACER needs to be much more readily accessible if it is to be usable for research, education, and the practice of law. Improved accessibility includes both lowering the costs for using PACER and enhancing the web interfaces.

Depository libraries should also have free access to PACER.

This brief is on behalf of both Dell and Hewlett-Packard, but it only talks about disruption to Dell, unless there is more in the redacted parts. But HP has filed its own brief [PDF], which Patently O provides. It represents that it also represents Dell. And it's almost word for word the same, just changing all the 'Dell' references to 'HP'.

There is an explanation at the beginning of Dell's brief about the materials omitted, giving a brief description of what is taken out of the public document.

And here it is, minus the header, because I had to do it by hand, and it's a lot of typing:

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

TABLE OF CONTENTS

Page

I. STATEMENT OF INTEREST.............................1

II. ARGUMENT ........................................ 1

a. Dell's Process for Installing Software......2

b. Impact of an October 10, 2009 Injunction of Microsoft Word..........3

c. The Court Should Weigh the Hardship to Dell and its Customers..........4

III. CONCLUSION.......................6

CONFIDENTIAL MATERIAL OMITTED

Confidential business information of Dell has been omitted. The material omitted on page 1 describes the nature and magnitude of harm to Dell if the injunction is not stayed, and the steps Dell would have to take were the injunction maintained; the material omitted on page 2 describes Dell's ability to timely comply with the injunction; the material on pages 3 describes the contractual provisions governing software changes between Dell and Microsoft; the material omitted on pages 4 describes Dell's ability to timely comply with the injunction and the harm to Dell arising from the injunction.

i

TABLE OF AUTHORITIES

Pages

FEDERAL CASES

Advanced Cardiovascular Sys., Inc. v. Medtronic Vascular, Inc.,
579 F. Supp.2d 554 (D. Del. 2008).......................5

eBay, Inc. v. MercExchange LLC,
547 U.S. 388 (2006)..................................5

Hilton v. Braunskill,
481 U.S. 770 (1987).................................4

Hoots v. Com. of Pa.,
651 F.2d 177 (3d Cir. 1981)...........................5

Standard Havens Products, Inc. v. Gencor Indus., Inc.,
897 F.2d 511 (Fed. Cir. 1990)...........................5

z4 Technologies, Inc. v. Microsoft Corp.,
434 F. Supp.2d 437 (E.D. Tex. 2006)......................5

ii

CONFIDENTIAL INFORMATION HAS BEEN REMOVED FROM THIS PAGE

I. STATEMENT OF INTEREST

Dell Inc. ("Dell") is a large distributor of Microsoft's Word software. Microsoft Word is included on [redacted] of the desktop and consumer notebook computers that Dell sells. The injunction ordered by the District Court for the Eastern District of Texas ("the District Court") in this matter [redacted]. This is especially true if the injunction is not stayed pending resolution of the appeal in this matter because [ redacted]. Dell's position as a large distributor of Microsoft Word also makes it well-situated to speak to the issues of injury to third parties and to the public interest that are relevant to this Court's assessment of Microsoft's motion to stay the injunction.

II. ARGUMENT

The District Court's injunction of Microsoft Word will have an impact far beyond Microsoft. Microsoft Word is ubiquitous among word processing software and is included on [redacted] computers sold by Dell. Implementing a revised version of Word to include with Dell computers [redacted]

1

CONFIDENTIAL INFORMATION HAS BEEN REMOVED FROM THIS PAGE

[redacted]

Dell urges the Court to consider the impact of an injunction of Microsoft Word on its business and its customers when weighing the equities involved in Microsoft's motion to stay the injunction pending appeal.

A. Dell's Process For Installing Software

Dell sells both desktop and consumer notebook computers that are equipped with Microsoft Word, among other software. For both types of computers, Dell installs software on the computers via "images," which include all of the content of a computer's hard disk. [August 22, 2009 Declaration of Robert Borchers ("Borchers Decl."), 3] [ | |

2

CONFIDENTIAL INFORMATION HAS BEEN REMOVED FROM THIS PAGE

Dell carefully tests and validates the images that are used in the manufacturing of its computers, both internally and at Dell's various factories. [Borchers Decl. 6] The testing on the images ensures correct operation on Dell's hardware as well as correct interoperability of the various software components that are included. [Id.] Such testing is critical because computers consist of thousands of hardware and software components, and changing one feature usually has unintended consequences. The millions of people who use PCs on a daily basis rely (consciously or not) on Dell's rigorous testing to insure that they can get their work done and not lose their data. [redacted]

B. Impact of an October 10, 2009 Injunction of Microsoft Word

3

CONFIDENTIAL INFORMATION HAS BEEN REMOVED FROM THIS PAGE

If Microsoft is required to ship a revised version of Word in Dell's computers, a change would need to be made to Dell's images. Making such a change would require extensive time- and resource-consuming re-testing. [Borchers Decl., 7] [redacted]

C. The Court Should Weigh the Hardship to Dell and its Customers

4

The District Court's injunction thus will impose heavy burdens on Dell, and will also adversely impact the public interest. The Court should consider these factors in weighing the equities relevant to Microsoft's motion to stay the injunction. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (noting that two factors regulating the issuance of a stay of injunction are "whether the issuance of the stay will substantially injure the other parties interested in the proceeding; and ... where the public interest lies"); accord Standard Havens Products, Inc. v. Gencor Indus., Inc., 897 F.2d 511, 512 (Fed. Cir. 1990); see also Hoots v. Com. of Pa., 651 F.2d 177, 178 (3d Cir. 1981) (finding that "the prospect of irreparable injury, harm to third parties, and demands of public interest thus support staying the district court order.")

The adverse impact on Dell is also relevant to the propriety of the injunction. Under eBay, one of the factors that the patentee must demonstrate is "that the public interest would not be disserved by an injunction." eBay, Inc. v. MercExchange LLC, 547 U.S. 388, 391 (2006). Harm to customers is a consideration in evaluating the impact of the injunction on the public interest. z4 Technologies, Inc. v. Microsoft Corp., 434 F.Supp.2d 437, 443-444 (E.D. Tex. 2006) (considering adverse impact of injunction on Microsoft's customers in evaluating the public interest factor); see also Advanced Cardiovasular Sys., Inc. v. Medtronic Vascular, Inc., 579 F.Supp.2d 554, 561 (D. Del. 2008) (denying an

5

injunction and noting record evidence of physician preference for the accused products). Dell urges the Court to consider the serious adverse impact of an injunction of Word on Dell, other PC sellers, and the PC-using public in evaluating whether the injunction should stand. At a minimum, should the injunction be affirmed following the Court's scheduled hearing on September 23, 2009, Dell respectfully requests that the injunction not take effect until 120 days following this Court's decision.

III. CONCLUSION

For the foregoing reasons, this Court should grant Microsoft's Emergency Motion to Stay Permanent Injunction Pending Appeal, or alternatively, expand the effective date of the injunction by 120 days from its ruling.

Dated: August 24, 2009

Respectfully submitted,

FISH & RICHARDSON P.C.

By: signature
Indranil Mukerji
Counsel for Amicus Curiae
DELL INC.

6


  


The Dell amicus brief, PDF and text, HP's as PDF (i4i v. Microsoft) | 204 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: proceng on Saturday, August 29 2009 @ 12:32 PM EDT
Please specify the error in the title.

---
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)

[ Reply to This | # ]

Damage to Dell (and HP)
Authored by: proceng on Saturday, August 29 2009 @ 12:42 PM EDT
Without (as you say) the detail as to the damage the public would suffer, this is simply a matter of saying "we don't want to take the time to create a new master". If, as argued, extensive testing is necessary to replace Microsoft's pre-packaged software, that indicates that Dell (and presumably HP) are making major modifications to the software.
The only areas that should be affected would be printer drivers (which should be part of the already packaged and tested operating system environment).
It would appear that the intention is to roll other changes into the new master, in addition to the MS Office/Word changes necessary to comply with the injunction. If this is true, the petition for stay should be denied.
If the harm to Dell (and HP) is the labor necessary to re-image pre-existing systems, that should be a contractual issue between Microsoft and their vendors, since it is Microsoft which caused the issue in the first place. Requiring i4i to be further harmed is not a substitute, if in fact the "public" harm is to an OEM, rather than the end user.

Perhaps, in the future, Dell and HP will be more selective as to who they tie their wagon to.

---
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)

[ Reply to This | # ]

Scale
Authored by: pogson on Saturday, August 29 2009 @ 12:47 PM EDT
The "harm" Dell describes is the need to configure a system with the revised software and to re-image it. If they already have images without the software, that should take about 15 minutes to tweak the software and an hour or less to make the image. Testing? If it runs, it runs. Then they get to spread that "harm" over thousands of units shipped. What is the unit cost of the tweaking? Probably less than a dollar. Is that harm sufficient to get M$ off the hook? I doubt that. If they are harmed it is by M$ and they should negotiate a revised licence fee to cover their costs. That would be fair.

---
http://pogson.6k.ca, my blog, an eclectic survey of topics: berries, mushrooms, teaching in N. Canada, Linux, firearms and hunting...

[ Reply to This | # ]

  • Scale - Authored by: Anonymous on Saturday, August 29 2009 @ 02:06 PM EDT
  • Scale - Authored by: N_au on Saturday, August 29 2009 @ 06:21 PM EDT
  • Scale - Authored by: ZipZip on Sunday, August 30 2009 @ 04:10 PM EDT
The Dell-HP amicus brief, PDF and text
Authored by: Anonymous on Saturday, August 29 2009 @ 01:00 PM EDT
Sounds like Dell needs to sue M$, not cry about added
expense. I expect the same goes for HP. I'm sure
M$ would do no less to Dell if the roles were reversed.
For example, if Dell or HP were found guilty of selling
infringing hardware in their products and were ordered
to stop. Excuse the pun, but then there would be no
"word", among other stuff, going out from them which
I'm sure would just frost M$ to no end. Hey, its all
business anyway where your "friends" are whoever makes
you a buck, and your enemies are the ones that cost you.




[ Reply to This | # ]

OT - The off-topic thread starts here...
Authored by: Totosplatz on Saturday, August 29 2009 @ 01:53 PM EDT
Please make links clicky

---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).

All the best to one and all.

[ Reply to This | # ]

Could WE submit an amicus brief?
Authored by: The_Pirate on Saturday, August 29 2009 @ 01:56 PM EDT
...Stating e.g. that there would be no harm to the world,
as anybody is free to download OpenOffice?

Looks like MS wants to take the world hostage for their
little games. So why not spread a bit of enlightenment?

...Just thinking. Guess i better leave that to the horses.
They have bigger heads...

[ Reply to This | # ]

News Picks Thread
Authored by: SilverWave on Saturday, August 29 2009 @ 04:27 PM EDT
So much News so little time...

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

The i4i is just a patent troll thread
Authored by: Anonymous on Saturday, August 29 2009 @ 04:44 PM EDT
Ignoring of course the product they make.

[ Reply to This | # ]

Typical
Authored by: Anonymous on Saturday, August 29 2009 @ 07:56 PM EDT
It is somehow symptomatic of the times we live in that major corporations
mistake harm to their bottom line for harm to the public.

Tom

[ Reply to This | # ]

extensive time- and resource-consuming re-testing
Authored by: hardmath on Saturday, August 29 2009 @ 08:48 PM EDT
Referring of course to Dell's brief...

Yo, Michael (Dell), it's called a cost of doing business. Every new product
from your end or Microsoft's involves updating an image, and the MS Word piece
of it could easily be compartmentalized in the rebuild. It's not like the OS
depends on Word (is it????).

And since you and Microsoft have such a lucrative partnership, have you
considered Ballmer's willingness to throw a few gold-plated chairs out for you?

Another thing. Amicus, as in friend. Here, as a non-party, the
"amicus" is supposed to refer to a brief filed as a friend of the
court. Amicus curiae. Nope, I won't ask you to google for it, Microsoft being
the kind of partner they are and all.

Bing for it.

--hm


---
"Mail-order schools lure fledgling code jockeys with promises of big bucks and
excitement. But a new survey finds hirings are rare." Computerworld, 12/11/95

[ Reply to This | # ]

[redacted]
Authored by: The Mad Hatter r on Saturday, August 29 2009 @ 11:45 PM EDT

Since the [redacted] was [redacted] then the [redacted] were [redacted].

Yep, makes a lot of sense. Now I know that I'm greedy, and want as much
information about the case as possible, but I think I have a point, in that when
a case is in the public interest, redaction should be limited to the very
minimum.

In this case both HP and Dell don't want us to know what they are saying, as we,
their biggest customers, would not be happy with what they are saying.


---
Wayne

http://crankyoldnutcase.blogspot.com/

[ Reply to This | # ]

Simple Solution
Authored by: Anonymous on Saturday, August 29 2009 @ 11:45 PM EDT
Here's a simple solution to the impass. I4i should add Dell and HP to the
lawsuit as well.

When RIM was sued for patent infringement (for a patent that was later tossed
out as invalid), the judge didn't care about how many of RIM's customers would
be inconvenienced by an injunction. So why should there suddenly be tender
concern for Dell and HP? Is it because in the first instance an American company
was suing a Canadian company, while in the second instance a Canadian company is
suing an American company? Surely what is sauce for the goose should be sauce
for the gander.

[ Reply to This | # ]

You're all wrong!
Authored by: Ian Al on Sunday, August 30 2009 @ 05:32 AM EDT
I can't believe it! PJ has written the explanation in the article and even she gets it wrong. OK here's the quote.
the material on pages 3 describes the contractual provisions governing software changes between Dell and Microsoft
OK, lets start with the images. When one buys a Dell or HP computer you have a number of software options. If you choose to have Microsoft Office preloaded, Dell and HP burn a complete disk image of the OS with that software already installed. (Incidentally, that image also includes the hidden restoration partition with the correct software additions as in the image.) If there is an injunction not to sell Microsoft Office then you take that option off the website and the sales literature and remove it from the sales forms. The only image change is that you don't burn the image with the software with the injunction against it, preloaded.

If Dell and HP decide that they want to continue selling Microsoft Office, but without the patent-violating Word program, then they need to burn the image on to a test machine and uninstall Word, leaving the rest of the software intact. Usually, it takes 20 minutes to create a new image without Word - simples.

But,

now read the blockquote and consider what the agreed customer and supplier prices are for the modified software option. What are the retail and wholesale prices now in force? Does that invalidate the contract with Microsoft, anyway? What would Microsoft, Dell and HP need to do in the extended period up to the injunction taking effect?

Now, let's indulge in a little conjecture, (just try stopping me!).

Dell's position as a large distributor of Microsoft Word also makes it well-situated to speak to the issues of injury to third parties and to the public interest that are relevant to this Court's assessment of Microsoft's motion to stay the injunction.
Such testing is critical because computers consist of thousands of hardware and software components, and changing one feature usually has unintended consequences. The millions of people who use PCs on a daily basis rely (consciously or not) on Dell's rigorous testing to insure that they can get their work done and not lose their data. [redacted]
If Microsoft is required to ship a revised version of Word in Dell's computers, a change would need to be made to Dell's images. Making such a change would require extensive time- and resource-consuming re-testing.
So, Dell and HP don't want to stop selling Office and just continue to sell the fully tested images they sell without Microsoft Office preloaded. Neither do they want to sell their computers with Microsoft Office, but with Word uninstalled. They want to sell the whole Microsoft Office package with a revised version of Word. Why might that be? Might it be that 'the contractual provisions governing software changes between Dell/HP and Microsoft' become very unfavourable if the volumes shipped drop? Might they lose their preferential prices for the remainder of the contract? Might they think that Microsoft would not agree to revised terms while the injunction remains (possibly, permanently)? Might Microsoft do this to pressurise them to either increase the damage to the world to improve their chance at the appeal or to decrease the damage to their revenues by continuing sales of the patent-violating version of Word?

Well, HP and Dell would like to have a stay of the injunction so that Microsoft can remove the patent violating part of Word in question so that none of them lose any money at all through lost sales. That means that, in the public interest, that 'would require extensive time- and resource-consuming re-testing' in order that 'the millions of people who use PCs on a daily basis rely (consciously or not) on Dell's rigorous testing to insure that they can get their work done and not lose their data' and, in the meantime, they want to continue to damage i4i by selling the patent-violating version of Word.

So none of that 'public interest' would be harmed if they did not want to maintain their revenue streams and just stop selling the Word component of Microsoft Office. But, that would mean that Dell, HP and Microsoft would lose the Word revenue until Microsoft come up with the modified Word just a few months later and Dell and HP can complete the 'extensive time- and resource-consuming re-testing'

It does not seem so compelling to stay the injunction when the alternative is a small loss in revenue to Microsoft, Dell and HP. That's a small price to pay for doing business with a serial monopoly abuser and patent violator.

---
Regards
Ian Al

Linux: Viri can't hear you in free space.

[ Reply to This | # ]

  • You're all wrong! - Authored by: Anonymous on Sunday, August 30 2009 @ 06:00 AM EDT
    • I agree - Authored by: MadTom1999 on Sunday, August 30 2009 @ 06:58 AM EDT
      • I agree - Authored by: Anonymous on Sunday, August 30 2009 @ 07:48 AM EDT
        • I agree - Authored by: Anonymous on Sunday, August 30 2009 @ 08:13 AM EDT
          • I agree - Authored by: Anonymous on Sunday, August 30 2009 @ 10:15 AM EDT
        • I agree - Authored by: Ian Al on Sunday, August 30 2009 @ 01:32 PM EDT
        • I dont want to seem rude - Authored by: MadTom1999 on Sunday, August 30 2009 @ 03:48 PM EDT
        • Nonsense - Authored by: Anonymous on Sunday, August 30 2009 @ 11:04 PM EDT
  • You've forgotten that - Authored by: Anonymous on Sunday, August 30 2009 @ 07:12 AM EDT
  • You're all wrong! - Authored by: Anonymous on Sunday, August 30 2009 @ 01:27 PM EDT
  • Administrivia - Authored by: Anonymous on Sunday, August 30 2009 @ 03:21 PM EDT
  • Sockpuppet test - Authored by: Anonymous on Sunday, August 30 2009 @ 07:03 PM EDT
Why did Dell and HP file these?
Authored by: Anonymous on Sunday, August 30 2009 @ 07:41 AM EDT

Did they independently decide that they had an interest in the outcome of the lawsuit?

Or did somebody in Redmond call them and say something like, "You want to keep your status as a reseller that Microsoft gives the best discounts to? Then we'd like you to file an amicus curiae brief. We'll fax the text to your legal department."

[ Reply to This | # ]

"Confidential Information" To Whom?
Authored by: Anonymous on Sunday, August 30 2009 @ 11:23 AM EDT
It's certainly information Dell and HP seem to share with their chief rivals in
the marketplace, each other.

[ Reply to This | # ]

The Dell amicus brief, PDF and text, HP's as PDF (i4i v. Microsoft)
Authored by: Tufty on Sunday, August 30 2009 @ 10:14 PM EDT
It seems to me that Dell is a party harmed by Microsoft's action. Microsoft
should be compensating them and helping them to re-image at express rates. Oh,
whoops, I forgot how well Microsoft looks after its partners.

Tufty


---
Linux powered squirrel.

[ Reply to This | # ]

The Dell amicus brief, PDF and text, HP's as PDF (i4i v. Microsoft)
Authored by: jsusanka on Monday, August 31 2009 @ 05:03 PM EDT
this is such bs

how would this even effect dells business. they don't sell office or word with
their computers anyway. they usually student and trial crap editions.

please take my microsoft office away I don't need and never wanted it in the
first place. it is just forced on me by my employer from deals that I had no say
in.

---
# Adware
http://jsusanka.bezoogle.com/pp/adware/

# Anti-Spyware
http://jsusanka.bezoogle.com/pp/anti-spyware/

[ Reply to This | # ]

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