D-day has arrived. Per court order, Microsoft has removed technology from Microsoft Word which has been judged to infringe on concepts patented by Canadian software firm i4i from the software effective today. Compliance does not equal surrender, though, as Microsoft also continues legal efforts to overturn the ruling.
Like many patents for technical concepts, the wording of the i4i patent seems too broad and general. The way Microsoft has implemented XML in Word does appear to fit the description of the i4i technology in the patent, but so do a lot of XML implementations. The issue goes deeper than Word, to whether or not the U.S. Patent Office should have issued the patent to begin with.
However, my opinion holds little weight with the United States court system, which apparently doesn’t agree with me. i4i has prevailed repeatedly in its legal battle against Microsoft, winning a $290 million judgment and a court order that Microsoft either remove the offending technology or make arrangements with i4i to legally license it.
Microsoft won a temporary injunction of the ban on selling copies of Word with infringing technology, but ultimately lost its appeal of the original judgment. On December 22, 2009 Microsoft was ordered to pay the $290 million judgment, and a new deadline of January 11, 2010 was set to cease sales of the offending software.
In compliance with that order, Microsoft has modified the Word 2007 and Office 2007 software being sold as of today. Microsoft has also issued patches which remove the infringing technology from existing copies of Word for both Windows and Mac, but users who purchased the software prior to January 11, 2010 are not obligated to download or apply the update.
However, late last week it also filed a new legal challenge asking the court to review…again…the appeal ruling.
Kevin Kutz, director of public affairs for Microsoft, said in a statement “The petition details significant conflicts we believe the December 22 decision creates with established precedents governing trial procedure and the determination of damages, and we are concerned that the decision weakens judges’ authority to apply appropriate safeguards in future patent trials.”
The statement implies some level of altruism and concern for the future of the United States legal system, but it’s hard to believe the challenge has any meaning to Microsoft beyond continued persistence in defending its position in this case, or simply an attempt to further delay paying the judgment and dragging i4i through court as long as possible.
The new Microsoft appeal challenges the methods used by the court for calculating damages and expresses concern that the calculation could be used as a precedent for future lawsuits, leading to excessive damage awards. Microsoft is a frequent target of legal challenges and certainly has a vested interest in maintaining damage calculations at the most reasonable level possible.
If Microsoft loses this latest challenge, it can pursue the appeal to the Supreme Court of the United States.
Tony Bradley tweets as @PCSecurityNews, and can be contacted at his Facebook page .