Microsoft filed its motion for a stay pending its appeal of the Federal District Court's decision that it violated i4i's patent on custom XML. The legal brief is fairly short, the longest argument being that Microsoft is likely to prevail on appeal.
But the approach it takes is more like a scattergun blast rather than a single bullet aimed at the heart. Generally, that's regarded as a "hope the court finds at least one straw here that it likes" kind of approach, according to attorney Paul Merrill. "Occasionally it succeeds," he wrote in an email.
Some of Microsoft's arguments:
- it tries to dismiss custom XML as an "obscure functionality;" sort of like saying that the alternators is an obscure part of an automobile engine;
- Microsoft is already expending "enormous human and financial capital" to try to comply with the District Court's 60-day deadline for either repairing the infringement or removing Word from store shelves;
- even i4i doesn't claim that Word infringes on its patent â€" only certain functions of Word. "Word users infringe the '449 patent only when they use Microsoft's software to open files of certain formats (.xml, .docx, or .docm) that contain custom XML instructions."
- The damages awarded are based on faulty calculations based on assumptions of how often "users" infringed on i4i's patent. (Microsoft also notes that the court "imposed enhanced damages of $40 million" but fails to explain that the $40 million was punishment for attorney misconduct during the trial; Microsoft disregarded instructions to not bring up the "patent troll" argument to the jury.)
- the public "will face hardship if the ubiquitous Word and Office software is absent from the market for any period."
- it's likely to succeed on appeal -- a classic, boilerplate argument that really boils down to the strength of its arguments in the present petition and the judge's own prejudices about the case.
- Microsoft and its partners, including Best Buy and HP, will suffer irreparable harm, and Microsoft will suffer "significant unrecoverable costs."
- The public interest would be served by a stay because i4i can't replace Word or Office. Never mind that other software vendors, including IBM, Google, Oracle and Zoho, to name just a few, do offer competing products, and that i4i's XML plug-in would allow them to translate Microsoft documents (including the benefits of this 'obscure' custom XML functonality0.
[Image source: John Linwood via Flickr]