Microsoft wins fast-track appeal of Word ban

Company must submit arguments to federal appellate court today; hearing on stay set for Sept. 23

A panel of federal judges has granted Microsoft Corp.'s request for a fast-track appeal of the injunction that prohibits the company from selling its popular Word software after Oct. 10.

Microsoft must make its case to the three judges by the end of business today.

The U.S. Court of Appeals for the Federal Circuit last week approved Microsoft's demand for an expedited hearing for its appeal. At the same time, the court denied Microsoft's motion for an "administrative stay" that would have nullified the injunction.

The injunction, which bars Microsoft from selling Word 2003 and Word 2007 in their current forms after Oct 10, was mandated by U.S. District Court Judge Leonard Davis on Aug. 11 after the company was found guilty by a Texas jury of infringing a patent held by Canadian software developer i4i Inc. Davis also awarded i4i more than $290 million in damages and interest.

On Aug. 18, Microsoft filed a motion to stay the injunction while it takes the case to appeal. In that motion, Microsoft warned of "massive disruptions" to its sales, as well as those of important OEM partners such as Dell Inc. and Hewlett-Packard Co., if the injunction was not put on hold.

Although a patent attorney with 17 years of experience said Microsoft would be able to quickly create a work-around to disable the offending Word's "custom" XML feature, the company claimed it would be unable to modify Word 2003 and Word 2007 by the Oct. 10 deadline.

According to the Court of Appeals calendar for the case, Microsoft must file a brief today outlining its arguments for the stay. A response brief from i4i is due two weeks later, on Sept. 8, while Microsoft's reply to that must reach the court by noon on Sept. 14.

An oral hearing is slated for Sept. 23, less than three weeks before the injunction is to take effect. The Court of Appeals would render its verdict on Microsoft's motion at some point after that.

Earlier, the judge said in a summary opinion of the case that evidence presented during the May trial showed Microsoft intended to make i4i's software "obsolete" by adding the custom XML feature to Word.

Davis also took shots at Microsoft for trying to do business as usual in the face of the verdict and his injunction. "Even after several years of litigation and a jury verdict of infringement, Microsoft requests the ability to continue selling the accused products and release an upcoming product with the same infringing functionality," Davis said two weeks ago.

"The expedited schedule of the Court of Appeals is appreciated and welcomed by i4i," company chairman Loudon Owen said in an e-mail. "We are confident that we will prevail on the appeal."

Microsoft spokesman Kevin Kutz said the company's statement from last week still holds. "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," Kutz said. "We look forward to bringing this matter before the Court of Appeals."

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