Microsoft Files 'Scattergun' Appeal

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."

Note that now it's the users, and not Microsoft, doing the infringing; note also that .docx is, of course, a Microsoft document format.

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."

That last argument is especially galling because it goes to the heart of the argument against government and educational institutions using proprietary software. Public agencies are forced to continue paying license fees to Microsoft, and are essentially a captive market for Microsoft, into the foreseeable future.

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.

Observers with whom I've spoken in the last week agreed that Microsoft would have to lay its cards on the table and make its best arguments in order to win this stay, and its arguments in this petition would give us a strong indication of its likelihood of winning an appeal.

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.

If the court grants the motion for a stay pending appeal, it will most likely be swayed by the potential for harm to Microsoft's partners; however, there isn't much in this argument that Microsoft didn't already bring up at the original trial, and based on what several attorneys I've spoken to have said, Microsoft is more likely to use the stay to negotiate a settlement with i4i, rather than try to bluff its way through an appeal it has a good chance of losing.

[Image source: John Linwood via Flickr]

Michael Hickins

Michael Hickins has written about technology and business for BNET, InformationWeek, InternetNews.com, eWEEK -- where he was executive editor from 2007-2008 -- The Curator, Pseudo.com, Multex Investor, Reuters, and Conde Nast's WWD.com. Hickins is the author of The Actual Adventures of Michael Missing, a collection of short stories published by Alfred A. Knopf in 1991. He also published Blomqvist, a picaresque novel set in 11th century Europe, in 2006. Hickins remains passionately interested in the intersections of business, technology, politics and culture, and endures a life-long obsession with baseball. He is married with two children and lives in Manhattan.

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