Microsoft on Tuesday asked an appeals court to halt an injunction that would force the company to stop selling Microsoft Word in its current form.
A judge last week issued an injunction that would force Microsoft to stop selling versions of Word with a custom XML function that a jury found infringes on a patent held by Canadian software maker i4i. The judge had ordered the injunction to go into effect 60 days after the ruling.
In its 'emergency motion', made on Tuesday, Microsoft asked an appeals court to halt that injunction and also to speedily hear the company's appeal, once it is filed.
Microsoft said that it is trying to remove the functionality found to infringe on i4i's patents, but unless it can do so, it would be forced to stop distributing Word in the US market. "Already, Microsoft is expending enormous human and financial capital to make its best effort to comply with the district court's 60-day deadline," Microsoft said in the appeals court motion.
The software maker said the injunction could potentially keep Word and even Office off the shelves for months.
"Unless Microsoft is able to redesign Word and push that redesigned version through its entire distribution network by 10 October... Microsoft and its distributors (which include retailers such as Best Buy and OEMs such as HP and Dell) face the imminent possibility of a massive disruption in their sales," Microsoft argues in the court papers.
Microsoft's motion is expected to be assigned to a three-judge panel that would consider the request. The software maker is also expected to file its full appeal shortly. On Friday, Microsoft made a motion to the trial judge in the case to allow the company to appeal the verdict without having to post a bond.
Microsoft has several options, including seeking remedy from the courts, creating a technical workaround that ensures Word is not infringing on i4i's patent, and settling with i4i.
In Tuesday's filing, Microsoft noted that, in the period since the jury's verdict, the US Patent and Trademark office has provisionally rejected the patent in question upon a re-examination and said that the company meets the standard for staying the injunction because it is likely to win its appeal, will be irreparably harmed by the injunction, that i4i will not be harmed by the stay and that the public will "face hardship" if Word or Office is absent from the market for any period of time.
Earlier this year, in the same patent case, a federal jury also awarded Microsoft $200m (£120m) in damages in the case. That amount, in part, was reached by determining that a reasonable royalty for the XML feature was $98 per copy of Word, a figure Microsoft noted in Tuesday's court filing is more than the retail price of some editions of Word.
For its part, i4i chairman Loudon Owen said last week that his company is not seeking to crush Word, but rather just to get Microsoft to stop infringing on his company's patents. Owen declined to say what, if any, settlement talks have been taking place between the two companies.
In a statement on Tuesday, Owen added that the appeal was "fully expected given the significance of the case and the flagship status of Microsoft Word to the defendant. i4i will continue to vigorously enforce its patent.
"We firmly believe the jury verdict and judgment were both fair and correct and we have been vindicated through this process."
Microsoft spokesman Kevin Kutz added the following statement: "Today, Microsoft filed a motion with the Court of Appeals for the Federal Circuit to seek an expedited review of its appeal and to stay the permanent injunction while the appeal is pending.
"These filings are not unusual in patent cases. As we've maintained throughout this process, we believe the evidence clearly demonstrates that we do not infringe and that the i4i patent is invalid. We look forward to filing our appeal and to Court of Appeals review. "
Talkback
First a disclaimer. I do not like software patients and believe they should not exist at all.
This case has some interesting features.
The first is that i4i is not a patent troll, as some Microsoft 'supporters' claim. They have an actual product that the patent was designed to protect.
Secondly, (although I am a very long way from being a patent expert) this appears to be an unusually narrow patent for a specific subset of XML (unlike the distemper brush one that Microsoft themselves recently obtained)
Thirdly Microsoft absolutely knew about this patent. They had tried their usual 'let's be partners' scam on i4i only this time it seems to have backfired.
Fourth. Microsoft kept very, very quiet about the ongoing litigation over this patent and their new {cough}open{cough} document format while ramming it though ISO fast track.
Fifth. i4i is very definitely being 'irreparably harmed' right now and doesn't have great resources or an alternative product, whereas Microsoft has both.
Sadly, I expect that Microsoft will eventually win, to the detriment of the rest of the world.
You can bet your life savings that M$ will come out of this unscathed, and won't lose any money over the "ordeal." You can't count the times they have knowingly used code from someones IP, and never gotten so much as a slap on the wrist. They get special treatment by federal judges, because many of them are in M$'s back pocket. Money talks.