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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


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