Updegrove: Microsoft, i4i Fight Not Quite Over

Lora Bentley

Last week I wrote about i4i's big win over Microsoft in the patent infringement case that involved XML capability in Microsoft Word. In a statement, Microsoft said it would do what was necessary to avoid the injunction against the sale of the product, which means removing the feature from copies of Word 2007 sold after Jan. 11, 2010, and designing future versions of Word without the feature.


However, Microsoft left the door open to other legal options, noting that it may ask for a rehearing en banc from the U.S. Court of Appeals for the Federal Circuit and/or seek a writ of certiorari from the U.S. Supreme Court. But as intellectual property attorney Andrew Updegrove pointed out in a blog post, those options are long shots at best. Regarding en banc review, Updegrove writes:

[S]uch a review by multiple judges of this specialized patent court cannot be had just for the asking -- Microsoft will have to show cause why the court should spend its time reconsidering a judgment that one of its own members had already reached.

And Supreme Court review is granted in less than 1 percent of cases in which it is sought, he says.


If neither of these options for review prove successful, Updegrove suggests two ways this "fight" will come to an end: First, i4i may still be willing to settle "if the offer is high enough." Or, if the version of Microsoft Word sold on Jan. 11 does not meet i4i's expectations in terms of non-infringement, the case could be back in court.


Only time will tell.

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