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The i4i-Microsoft Appeal - HP and Dell Ask to File Amicus Briefs in Support of Microsoft - Updated
Wednesday, August 26 2009 @ 10:51 AM EDT

HP and Dell have asked the court to allow them to file amicus briefs in support of Microsoft's Emergency Motion to Stay Permanent Injunction Pending Appeal in the i4i patent litigation.

I can't show you the documents yet, as they are not yet available electronically. I'm sure you could write them in your mind quite readily, though. They will say their businesses will be deleteriously affected if they can't ship Word, and the world as we know it will halt if the judge doesn't turn this around and block the injunction at least until the appeal can be heard.

Actually, for them as businesses, it could indeed be very disruptive. If you recall, Microsoft's motion says they will be, so they are confirming it, presumably. End users aren't particularly going to be affected, because i4i told the court it won't go after users for prior infringement, only future, but vendor partners of Microsoft certainly could be affected. I guess they could install OpenOffice.org instead of Word. Hey. Why not?

That's if Microsoft is being accurate, and it's not possible to just send out a patch and fix the customXML problem that way by the deadline. Partnering with Microsoft is a bit of a gamble, if the allegations of i4i are eventually upheld on appellate review. Much as I personally despise software patents, and methods patents, the fact is patent law is designed to protect the victim of infringement. And if you infringed, you can expect massive disruption. Remember the Blackberry litigation? The idea is you shouldn't have infringed in the first place.

The issue here is whether to stay the disruption until all appeals are heard, so as to avoid damage to Microsoft that may prove unnecessary. Watching patent cases is like watching ping pong. Appeals are common, and often they work out. All that matters is the final judgment in a case after all appeals are fully exhausted, and that's the absolutely right word. Patent litigation is exhausting. Also expensive, because appeals are so common. But Microsoft is asking for a lot. Patently O explains:

Stay of Injunctive Relief Pending Appeal: Unless otherwise ordered by the court, a permanent injunction is not stayed during an appeal. In Hilton v. Braunskill, 481 U.S. 770 (1987), the Supreme Court outlined a four factor test used when determining whether to stay enforcement. The factors are essentially the converse of those used in determining whether to grant a preliminary injunction. These factors include: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits [of the appeal]; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."

Patent Reform on this Issue: In 2006, patent reform legislation introduced in Congress would have added an automatic stay of permanent injunctions after a showing that "the stay would not result in irreparable harm to the owner of the patent and that the balance of hardships from the stay does not favor the owner of the patent." Patents Depend on Quality Act of 2006, H.R. 5096, 109th Cong. 8 (2006) (proposing to amend 35 U.S.C. 283).

I have a better idea for patent reform: let software and patents get a divorce. It's massively disruptive, and who benefits in this picture? If you just must have them, devise a way to distinguish between software patents and pharmaceuticals. Trying a one-size-fits-all patent scheme can never work for them both, unless you tailor the law for types of patents. What drug companies need isn't at all the same as what software vendors and programmers need. FOSS, of course, needs patents to get out of its innovative way. Sharing what you know is the essence of FOSS; patents are all about secrets and many years of protection, when in software, nothing lasts as long in the market generally as the patent does. So it's not a good fit. Patently O also has an article today on the relevance of the pending reexamination of the i4i patent:
Pending Reexamination: Microsoft has submitted its motion for a stay of injunctive relief pending the outcome of its appeal to the Federal Circuit. Oddly, the first sentence of Microsoft's introduction begins with a statement that the PTO "already had provisionally rejected upon reexamination as anticipated and obvious." By 'provisionally rejected' Microsoft means that a non-final office action has been mailed out in the ex parte reexamination that it requested in November 2008 (the litigation was filed in March 2007).

The opening is odd because of its irrelevance. The vast majority of third party requests for ex parte reexaminations are granted (over 95%) and then 'provisionally' rejected (83% of those). That usual course is simply the beginning of a typically long reexamination process. Even amongst reexaminations that received a non-final rejection - most resulted in a reexamination certificate that confirmed the patentability of at least one original claim. Of course, the final resolution of the reexamination is likely years away.(The figures are based on my own study of 5,000 ex parte reexamination file histories).

The opening is also odd because, to my knowledge, the Federal Circuit has never placed any weight on the fact that a co-pending reexamination has been provisionally rejected.

He says we can expect a ruling by October 10.

The judge in the lower court said i4i is being damaged every day that there is not an injunction, and it wasn't found guilty of anything, so he tilted toward protecting i4i, ruling that Microsoft would not be irreparably harmed but i4i would be. So now, up step two Microsoft partners, saying, one assumes, that they will be, even if Microsoft can endure it. So that sets the stage for you.

The only documents currently available electronically currently are the notices of appearance by the lawyers who will be representing the parties. I can show you the docket entries and the schedule of what happens next. And as the more substantive documents are posted, which I expect will occur, we'll have them for you. Here are the deadlines that matter next:

Briefing schedule revised to extent that i4i Limited Partnership's brief is due 9/8/09 and Microsoft's reply brief & joint appendix must be served and received by the court no later than noon on 9/14/09.
As for the attorneys, it's essentially Weil, Gotshal & Manges for Microsoft, and Finnegan, Henderson, Farabow for i4i. Microsoft also has in-house counsel, of course, and being the 800-pound gorilla in this picture also has another firm on the case, Gibson, Dunn & Crutcher. Their lead attorney is Matthew Powers at Weil, a highly respected patent litigator. Here's an article about him in AmLawDaily, mentioning the judge's sanctions but also a major win in another large patent case that same week, where Powers represented Merck:
Given the huge stakes in both case--and the different outcomes for Powers--we called to ask what his week's been like. (Sort of like if the guy from the old "agony of defeat" commercial got up, put his skis back on, and proceeded to win the race.) Powers kept his cards close to the vest when we spoke to him Thursday. He said he was "pleased" with the Merck decision, but he declined to address Judge Davis's charge that he made improper arguments at the Microsoft trial....

We asked for a preview of how Powers intends to address Judge Davis's accusations. He again demurred. "It will all be addressed in the brief," Powers said.

See how truly skilled lawyers are? They don't schmooze much with the media. And they don't tell you everything they know. They speak in the courtroom, where it matters.

Finnegan has every right to be proud of their accomplishment in this litigation so far. But all that matters in litigation is winning at the very end. Even this appeal may not be the very end. There is too much at stake.

Microsoft recently lost another patent case, one that reminds me a bit of this one, as reported by Jon Brodkin of ComputerWorld:

According to Davis, Microsoft approached Uniloc in the 1990s, looking to either purchase the company or get an exclusive license to its technology. Several years later, Uniloc noticed Microsoft using "something awfully similar" in its product activation systems for Windows and Office.

Last month, in a federal court in Rhode Island, a jury ordered Microsoft to pay $388 million to Uniloc after deciding Microsoft was guilty of patent infringement. Microsoft said it was disappointed in the verdict and plans to appeal.

Microsoft, if it is guilty of such conduct, might need to revise its business model. If not, if this keeps happening, partners may find themselves at least factoring it into theirs, or at least I would.

If you can't wait for the appeals documents, and you're in the area and wish to go to the court (US Court of Appeals for the Federal Circuit) and get copies for us, that'd be grand. Call the court first, to make sure they will be able to help you out. Or email me and I'll tell you how to do it.

Update: PC World's Mark Hachman has a reaction from i4i:

For its part, i4i characterized Microsoft's appeal as indicative of its "hostile attitude". "The appeal brief filed by Microsoft is an extraordinary document," Loudon Owen, chairman of i4i, said in a statement that was emailed to reporters on Wednesday. "It captures the hostile attitude of Microsoft toward inventors who dare to enforce patents against them. It is also blatantly derogatory about the Court system."
He also quotes from the HP and Dell amicus brief, but he doesn't provide the document. So you can read about it, but you can't read it for yourself. And the court doesn't provide the document digitally.

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

U.S. Court of Appeals for the Federal Circuit


I4I V MICROSOFT

2009-1504

The following documents, filed after 8/13/07, are available for download:
official caption, entry of appearance, certificate of interest.
No other case documents are available electronically.



Date History
8/25/2009 Due BLUE BRIEF
/ / Appellant Principal Brief Filing Date
/ / Appellee or Cross Appellant Principal Brief Filing Date
/ / Appellant Reply Brief Filing Date
/ / Cross Appellant Reply Brief Filing Date
/ / Appendix Filing Date
9/23/2009 Oral Argument Date / Calendared
/ / Disposition: ; by
/ / Mandated on
>> Please Note: The briefs above are only the most current.


MOTIONS AND OTHER ENTRIES
>> Please Note: Motions are listed first. Entries are listed last.
8/24/2009 MOTION: Entry 22 :by Amicus - Motion by Hewlett-Packard Company for Leve to File a Brief as Amicus Curiae in Support of Defendant-Appellant's Emergency Motion to Stay Permanent Injunction Pending Appeal. [confidential and nonconfidential versions accompanied by a brief] SERVICE : by Mail on 8/24/2009

8/24/2009 MOTION: Entry 21 :by Amicus - Motion by Dell Inc. for Leave to File a Brief as Amicus Curiae in Support of Defendant-Appellant's Emergency Motion to Stay Permanent Injunction Pending Appeal. [confidential and nonconfidential versions accompanied by the brief] SERVICE : by Mail on 8/24/2009

8/24/2009 MOTION: Entry 19 :by Appellant - Emergency Motion to File enlarged briefs. SERVICE : by Hand on 8/24/2009
ACTION: Entry 20 :Motion granted. Filed: 8/24/2009

8/18/2009 MOTION: Entry 2 :by Appellant - Emergency Motion to Stay Permanent Injunction Pending Appeal (with exhibits) [confidential and non-confidential versions]. SERVICE : by Mail on 8/18/2009

>> Entries for Case Number: 2009-1504
Entry 18 : 8/20/2009 : NOTICE OF CALENDARING mailed to parties. PANEL 0909H on September 23, 2009.
. SERVICE : by Court on 8/20/2009

Entry 17 : 8/20/2009 : Ordered: Briefing schedule revised to extent that i4i Limited Partnership's brief is due 9/8/09 and Microsoft's reply brief & joint appendix must be served and received by the court no later than noon on 9/14/09. By: Motions Panel. Judge Prost.
. SERVICE : by Court on 8/20/2009

Entry 16 : 8/19/2009 : Entry of Appearance for Jason W. Melvin as counsel on behalf of Appellees, i4i Limited Partnership and Infrastructures for Information Inc.
. SERVICE : by Mail on 8/19/2009
. DOC : I4I 2009-1504 (8.19.09 EOA MELVIN).PDF

Entry 15 : 8/19/2009 : Entry of Appearance for Don O. Burley as counsel on behalf of Appellees, i4i Limited Partnership and Infrastructures for Information Inc.
. SERVICE : by Mail on 8/19/2009
. DOC : I4I 2009-1504 (8.19.09 EOA BURLEY).PDF

Entry 14 : 8/19/2009 : Entry of Appearance for Erik R. Puknys as counsel on behalf of Appellees, i4i Limited Partnership and Infrastructures for Information Inc.
. SERVICE : by Mail on 8/19/2009
. DOC : I4I 2009-1504 (8.19.09 EOA PUKNYS).PDF

Entry 13 : 8/19/2009 : Entry of Appearance for Donald R. Dunner as principal counsel on behalf of Appellees, i4i Limited Partnership and Infrastructures for Information Inc.
. SERVICE : by Mail on 8/19/2009
. DOC : I4I 2009-1504 (8.19.09 EOA DUNNER).PDF

Entry 12 : 8/19/2009 : Ordered: Microsoft's opening brief due 8/25/09. i4i Limited Partnership's brief due 9/7/09. Microsoft's reply brief & joint appendix due 9/11/09. Case will be heard 9/23/09. (See order for details) By: Motions Panel. Judge: Prost.
. SERVICE : by Court on 8/19/2009

Entry 11 : 8/19/2009 : Ordered: 1) Response of i4i Limited Partnership et al. to Microsoft's motion for a stay, pending appeal, is due August 25, 2009. Microsoft's motion for an "administrative stay" of the injunction is denied. By: Motions Panel. Judge: Prost.
. SERVICE : by Court on 8/19/2009

Entry 9 : 8/18/2009 : Entry of appearance for Minodora D. Vancea as counsel on behalf of appellant Microsoft Corporation.
. SERVICE : by Mail on 8/18/2009
. DOC : I4I 2009-1504 (8.18.09 EOA VANCEA).PDF

Entry 8 : 8/18/2009 : Entry of appearance for Amber Hatfield Rovner as counsel on behalf of appellant Microsoft Corporation.
. SERVICE : by Mail on 8/18/2009
. DOC : I4I 2009-1504 (8.18.09 EOA ROVNER).PDF

Entry 7 : 8/18/2009 : Entry of appearance for Kevin Kudlac as counsel on behalf of appellant Microsoft Corporation.
. SERVICE : by Mail on 8/18/2009
. DOC : I4I 2009-1504 (8.18.09 EOA KUDLAC).PDF

Entry 6 : 8/18/2009 : Entry of appearance for Isabella Fu as counsel on behalf of appellant Microsoft Corporation.
. SERVICE : by Mail on 8/18/2009
. DOC : I4I 2009-1504 (8.18.09 EOA FU).PDF

Entry 5 : 8/18/2009 : Entry of appearance for Matthew D. Powers as principal counsel on behalf of appellant Microsoft Corporation.
. SERVICE : by Mail on 8/18/2009
. DOC : I4I 2009-1504 (8.18.09 EOA POWERS).PDF

Entry 4 : 8/18/2009 : Official caption.
. SERVICE : by Court on 8/18/2009
. DOC : i4i 2009-1504 (8.18.09 CAPTION).pdf

Entry 3 : 8/18/2009 : Preliminary notice of docketing issued.
. SERVICE : by Court on 8/18/2009

Entry 10 : 8/18/2009 : Entry of appearance for Matthew D. McGill as counsel on behalf of appellant Microsoft Corporation.
. SERVICE : by Mail on 8/18/2009
. DOC : I4I 2009-1504 (8.18.09 EOA MCGILL).PDF


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