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The i4i v. Microsoft Orders and Permanent Injunction - Updated
Wednesday, August 12 2009 @ 02:41 PM EDT

I have the court documents for you in the i4i v. Microsoft case, the judgment, the permanent injunction, and the memorandum and order, which explains the legal reasoning in support of the order. I also got for you the original complaint by i4i, Microsoft's answer with counterclaim, and i4i's reply to the counterclaim, so you can understand what it was all about. The law firm that won has put out a press release. Microsoft, of course, will appeal. It has 60 days to do so.

You probably think I am delighted. I am not. I hate software patents. And this is precisely why. It is karmic that this happened to Microsoft, who bullies Linux with patent threats and just got an XML patent of its own on August 4th that could, presumably, be used against the entire market. How stupid do we have to be to grant patents on software? On software *standards*? This is what happens. Now do you see it?

FOSS has been taking the lead in trying to educate the world that patents are toxic for software. They disrupt and they block innovation. Software and patents need to get a divorce. You might like to read Red Hat's amicus brief that it submitted in the Bilski case to see why software patents are particularly destructive to the FOSS development model.

As for Microsoft's recent effort to define "open standards" to, as Dana Blankenhorn describes it, "mandate standards bodies to consider patented, protected, proprietary technology on a par with truly open source offerings", what has just happened to the XML standard gives what I consider the absolutely final and complete answer to such a specious argument. Ladies and gentlemen of the jury, I present Exhibit A. It's not open if a judge can shut it down. Or a vendor. Is that hard?

Here's the docket entry:

08/11/2009 - 412 - MEMORANDUM OPINION AND ORDER granting in part 346 Motion for enhanced damages and attorneys' fees; granting in part 364 Sealed Patent Motion for permanent injunction; granting in part 349 Sealed Patent Motion for permanent injunction; granting 350 Sealed Patent Motion for post verdict damages, pre-judgment interest, and post-judgment interest; all other motions are DENIED: denying 345 Motion for Judgment as a Matter of Law; denying 347 Motion for Judgment as a Matter of Law; denying 348 Motion for Judgment as a Matter of Law; denying 351 Motion for New Trial; denying 353 Motion for New Trial; denying 356 Motion for Judgment as a Matter of Law; denying 359 Motion for Judgment as a Matter of Law; denying 370 Sealed Motion to stay injunctive relief; denying 389 Sealed Motion to strike. The permanent injunction provided for herein will be memoralized in a seperate order. Signed by Judge Leonard Davis on 08/11/09. cc:attys 8-11-09 (mll, ) (Entered: 08/11/2009)

08/11/2009 - 413 - PERMANENT INJUNCTION. Signed by Judge Leonard Davis on 08/11/09. cc:attys 8-11-09(mll, ) (Entered: 08/11/2009)

08/11/2009 - 414 FINAL JUDGMENT. Deft Microsoft Corp is found to have unlawfully infringed US Patent 5,787,449, and to have infringed the '449 patent willfully. The '449 patent is valid and enforceable, and Michel Vulpe is found not to have engaged in inequitable conduct with respect to the '449 patent. i4i's damage award is found not barred by laches. The Court awards damages to i4i for Microsoft's infringement of the '449 patent in the amount of $200,000,000. i4i is further awarded enhanced damages of $40,000,000 for Microsoft's willful infringement. i4i is further awarded post-verdict damages of $144,060 per day from 5-21-2009 until the date of this Final Judgment. i4i is further awarded pre-judgment interest of $37,097,032 up to 5-20-2009 and $21,102 per day thereafter until the date of this Final Judgment. i4i is entitled to post-judgment interest for any time period between the entry of this Final Judgment and the date upon which i4i receives payment from Microsoft as ordered herein. Microsoft is enjoined from infringing the '449 Patent. The terms of that injunction are contained in the separate Order of this Court. Except for the Court's more detailed injunction terms as contained in a separate Order, all relief not specifically granted herein is DENIED. All pending motions not previously resolved are DENIED. Signed by Judge Leonard Davis on 08/11/09. cc:attys 8-11-09(mll, ) (Entered: 08/11/2009)

And the extras, the i4i Complaint, the Microsoft Answer and the i4i Reply, all PDFs.

The issue is Custom XML, which is a Microsoft thing. Here's a page that may be disappearing any time now, Doug Mahugh teaching how to use Custom XML and how it's the best thing since white bread. The ODF folks tried to explain that it wasn't a good idea, although for different reasons. ODF uses extensible metadata instead, last I looked. Groklaw member stegu explains it like this:

"Custom XML" refers to content within the file that is of a different XML format, with a separate "custom schema" to describe that content. The problem with such content is that there is no way for a standard to describe how such data should be interpreted, as it is by definition in a "custom format" and can be any kind of data. That is why "custom XML" is not allowed in ODF documents, and that is one of the reasons why OOXML is such a miserable standard.
Well, that's water under the bridge now, that discussion. Patents trump everything. That's what's wrong with them. One thing that wrong with them. But what if Custom XML really was the best thing since white bread? Then the entire US must pay i4i to use it in Word going forward. Or Microsoft has to remove it. Microsoft is rich. It will find a solution. But what if your company isn't so rich? What do you do? People tend to think about patents from the perspective of the owner. Yay! Megabucks! I hit the lottery! But think about it from the perspective of the public. You get to pay more now for Word or you can't use all of its intended functionality. i4i, a Canadian company, cleans up. That's the system. We are talking about a *standard*. Who invented this patent system? It doesn't work with software. Period. Really. Do something, somebody, please.

[ Update: Some interesting reactions in the media I thought would interest you:

  • Steven J. Vaughan-Nichols, ComputerWorld:
    In this case, though, i4i isn't a patent troll. It's a real company that uses its patented technology in real products. It also believes that Microsoft has used its patent in Word. And, what's to the point, they convinced Judge Davis of this....

    Microsoft may very well have to stop sales or disable Open XML, Word's new standard document format. This injunction will not be easy to dodge....

    Now, I am not a lawyer, but I know something about IP law and a fair amount about markup languages since I've been covering them since SGML (Standard Generalized Markup Language), showed up in the late 1980s and before anyone had dreamed up the Web's HTML (Hypertext Markup Language) or XML. To me, the i4i patent reads like a classic, over-reaching patent that covers prior art, which should have prevented it from ever becoming a patent.

  • Preston Gralla, "It's time to banish patent lawyers":
    Like Microsoft or loath it, it's clear that the recent ban against Word being sold because of a potential patent infringement represents everything bad about patent law. The patent that Microsoft is said to infringe upon is one that should never have been issued, and is the kind that hurts the spread of new technologies....

    It's a clear example of a patent that should never have been issued because the technology it describes is far too broad, and covers far too much ground.

  • Dana Blankenhorn, ZDNET, "When will Microsoft admit the truth about software patents?":
    The truth being they are more trouble than they are worth....

    Just file a case to overturn State Street, or limit your lobbying to a call for an end to software patents.

Interesting, no? There's one more headline, but only to debunk, Matt Asay's Microsoft's 'Custom XML' patent suit could put ODF at risk. Actually, it doesn't, so far as I know. Custom XML was one of the reasons ODF folks thought the OOXML "standard" was crudely designed, and that it had no place in a standard. It was a big discussion, and basically, to the extent I understood it, the issue was this: that it was a short cut on Microsoft's part, so it wouldn't have to do things in the usual standard way but could just keep things as they were, dumping a lot of processing stuff into the format, where, ODF folks said, it didn't belong. The very name should tell you why.

The idea of a standard is everyone is on the same page. That contributes to interoperability. Customization, while necessary in practice, needs to stay separate from the standard, or it isn't standardized, if you know what I mean. Now it's customized instead, and that does not lead to ease of interoperability. Custom schemas, the discussion went, don't belong embedded. So ODF has a different way of doing things. Feel free to correct any fine points here, guys, but the bottom line is everyone here is telling me that ODF does not use Custom XML. You'd need a patent lawyer you pay for to tell you more as to any specific liability issues.

As it happens, there's a screenshot on CNET of a technical preview of Microsoft Office 2010, and you'll see Custom XML listed. - end update.]

Here are the terms from the permanent injunction and then the final judgment, as text:

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

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

i4i LIMITED PARTNERSHIP and
INFRASTRUCTURES FOR INFORMATION, INC.,

Plaintiffs

vs.

MICROSOFT CORPORATION,

Defendant.

_______________

CASE NO. 6:07CV113
PATENT CASE

_______________

PERMANENT INJUNCTION

In accordance with the Court’s contemporaneously issued memorandum opinion and order in this case, Microsoft Corporation is hereby permanently enjoined from performing the following actions with Microsoft Word 2003, Microsoft Word 2007, and Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007 (collectively “Infringing and Future Word Products”) during the term of U.S. Patent No. 5,787,449:
1. selling, offering to sell, and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML;

2. using any Infringing and Future Word Products to open an XML file containing custom XML;

3. instructing or encouraging anyone to use any Infringing and Future Word Products to open an XML file containing custom XML;

4. providing support or assistance to anyone that describes how to use any infringing and Future Word Products to open an XML file containing custom XML; and

5. testing, demonstrating, or marketing the ability of the Infringing and Future Word Products to open an XML file containing custom XML.

This injunction does not apply to any of the above actions wherein the Infringing and Future Word Products open an XML file as plain text.

This injunction also does not apply to any of the above actions wherein any of the Infringing and Future Word Products, upon opening an XML file, applies a custom tranform that removes all custom XML elements.

This injunction further does not apply to Microsoft providing support or assistance to anyone that describes how to use any of the infringing products to open an XML file containing custom XML if that product was licensed or sold before the date this injunction takes effect.

This injunction becomes effective 60 days from the date of this order.

So ORDERED and SIGNED this 11th day of August, 2009.

[signature]
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

i4i LIMITED PARTNERSHIP and
INFRASTRUCTURES FOR INFORMATION, INC.,

Plaintiffs

vs.

MICROSOFT CORPORATION,

Defendant.

_______________

CASE NO. 6:07CV113
PATENT CASE

_______________

FINAL JUDGMENT

Pursuant to Rule 58 of the Federal Rules of Civil Procedure, consistent with the Court’s contemporaneous Memorandum Opinion and Order, and in consideration of the jury verdict delivered on May 20, 2009 and the entirety of the record available to this Court, the Court ORDERS AND ENTERS FINAL JUDGMENT as follows:
  • Defendant Microsoft Corporation (“Microsoft”) is found to have unlawfully infringed U.S. Patent No. 5,787,449 (the “‘449 patent”).

  • Defendant Microsoft is found to have infringed the ‘449 patent willfully.

  • The ‘449 Patent is valid and enforceable, and Michel Vulpe is found not to have engaged in inequitable conduct with respect to the ‘449 patent.

  • i4i, LP’s and Infrastructures for Information, Inc.’s (collectively “i4i”) damage award is found not barred by laches.

  • The Court awards damages to i4i for Microsoft’s infringement of the ‘449 patent in the amount of $200,000,000.

  • i4i is further awarded enhanced damages of $40,000,000 for Microsoft’s willful infringement.

  • i4i is further awarded post-verdict damages of $144,060 per day from May 21, 2009 until the date of this Final Judgment.

  • i4i is further awarded pre-judgment interest of $37,097,032 up to May 20, 2009 and $21,102 per day thereafter until the date of this Final Judgment.

  • i4i is entitled to post-judgment interest as provided for by 28 U.S.C. § 1961 for any time period between the entry of this Final Judgment and the date upon which i4i receives payment from Microsoft as ordered herein.

  • Microsoft is enjoined from infringing the ‘449 Patent. The terms of that injunction are contained in a separate Order of this Court.

  • Except for the Court’s more detailed injunction terms as contained in a separate Order, all relief not specifically granted herein is DENIED.

  • All pending motions not previously resolved are DENIED.
So ORDERED and SIGNED this 11th day of August, 2009.

[signature]
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE


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