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To read comments to this article, go here
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


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