Microsoft Again Appeals i4i Patent Judgment

With Monday’s deadline looming for Microsoft to pull a feature in Office 2007 and Word 2007 that a federal appeals court ruled last month violates a much smaller competitor’s patent, the software giant has decided to fight on.

“Today, Microsoft filed a petition with the United States Court of Appeals for the Federal Circuit for both panel rehearing and rehearing en banc in the i4i case,” Kevin Kutz, director of public affairs for Microsoft, said in a statement e-mailed to on Friday.

Tiny Toronto firm i4i sued Microsoft in 2007 over claims that the software giant infringed a patent i4i has held for 11 years for handling so-called “custom XML” (eXtended Markup Language). The smaller company makes XML editing tools.

i4i had alleged that Microsoft had purposely violated its patent after originally telling the smaller firm it was interested in its technology, then developing its own custom XML editing feature.

Microsoft lost the case in the lower court last spring. In August, the judge in the case, awarded i4i a total of around $290 million in penalties, fines, and interest.

The lower court also issued a restraining order forcing Microsoft to remove the custom XML handling features in Word 2007 and Office 2007 as well as Word 2003 and Office 2003, or quit selling the products by October 10. However, Word 2003 and Office 2003 are no longer sold, whittling the list down to Word 2007 and Office 2007.

Office 2010, which is due out in June, does not contain the offending feature, according to Microsoft.

Microsoft appealed the lower court verdict, the damages, and the injunction, which was suspended during the appeal, but on December 22, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit in Washington, ruled against the Redmond, WA company. At the time, Microsoft officials said they were still evaluating their options.

Microsoft’s appeal for a rehearing

The company is asking a panel of appeals court judges to rehear the case, as well as asking the entire court of appeals to rehear the case “en banc,” which means all of the judges on that Circuit Court of Appeals would participate.

In its statement, Microsoft said it believes that there were problems in the handling of the case that resulted in clashes with established precedents.

“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,” Kutz’s statement said.

The appeals court also ordered Microsoft to remove the infringing code from Office 2007 by January 11. Perhaps anticipating the injunction would be upheld, however, Microsoft had begun removing the feature as early as October, the company later disclosed.

Microsoft’s statement also said “We expect to have copies of Microsoft Word 2007 and Office 2007, with this feature removed, available for U.S. sale and distribution by the injunction date.”

Meanwhile, i4i remains unperturbed by the appeals.

“This next step of seeking a rehearing was anticipated. We continue to be confident that we will prevail,” Loudon Owen, i4i’s chairman, said in a statement e-mailed to

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