Federal Circuit Grant Stay to Microsoft Injunction?
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Written by Gene Quinn President & Founder of IPWatchdog, Inc. Patent Attorney, Reg. No. 44,294 Zies, Widerman & Malek E-mail | Blog | Twitter | LinkedIn Posted: Sep 4, 2009 @ 12:04 pm 
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Perhaps you have come across this story in the popular press over the last day. It seems to be widely reported that Microsoft has convinced the United States Court of Appeals for the Federal Circuit to grant a stay of the permanent injunction issued against the Redmond, WA based company relative to its popular word processing software – Word. I cannot say that the Federal Circuit has not granted a stay, but I see absolutely no evidence that a stay has been granted. If the Federal Circuit has granted a stay they are doing a wonderful job at keeping it secret and holding it very close to the vest so that no one can actually read the Order.
If you go to the Federal Circuit website and click on Opinions & Orders you see the following:
Not to be deterred, I went to the Motions page, where the court is now posting electronic versions of orders resolving motions processed through the Office of the Senior Staff Attorney. The orders are posted in PDF format twice daily. As the popular press is reporting, the Federal Circuit granted Microsoft a stay of the permanent injunction yesterday, September 3, 2009. Searching this database shows only one document from yesterday, and it does not relate to the Microsoft appeal of i4i’s patent infringement victory.
The Motions page does, however, say that certain orders are not posted on the page, but that further case information is available through the court’s PACER system. So the search continues on to PACER.
If you log into the Federal Circuit PACER system and go to the i4i v. Microsoft page there are only two things listed as having happened yesterday, September 3, 2009. These are:
It is at this point that I think I am going to give up the search to confirm that the Federal Circuit has awarded Microsoft a stay pending its appeal. Perhaps that has happened, or perhaps this is just another example of the popular press getting it wrong and then everyone simply copying the mistake rather than trying to do any real reporting and confirm. I can’t really say one way or another. Nevertheless, I will say that if the Federal Circuit has granted a stay pending appeal to Microsoft the far bigger and more important question is why are they hiding it and why can’t they figure out a simple, easy and direct way to convey information to the public. Having an Opinions & Orders page, a Motions page that posts some, but not all documents, and a PACER system that is poorly organized and costs money doesn’t seem to be the way that any court should operate in the digital age.
About the Author
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Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc. US Patent Attorney (Reg. No. 44,294) Zies, Widerman & Malek B.S. in Electrical Engineering, Rutgers University J.D., Franklin Pierce Law Center L.L.M. in Intellectual Property, Franklin Pierce Law Center Send me an e-mail  |
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Known by many as “The IPWatchdog,” Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.
Further down on the docket sheet is the following entry, showing the motion requesting stay was granted on 9/3/09:
8/18/2009 MOTION: Entry 2 :by Appellant – Emergency Motion to Stay Permanent Injunction Pending Appeal (with exhibits) [confidential and non-confidential versions]. SERVICE : by Mail on 8/18/2009
. REPLY 1: 8/25/2009 , Entry # 23
. REPLY 2: 8/31/2009 , Entry # 36
ACTION: Entry 43 :Granted. Filed: 9/3/2009
don’t get me wrong; I like to bash big corporations as much as the next guy, but I found myself pulling for Microsoft on this one.
With how awful Vista is and how awful most Microsoft products have become, I personally root for anyone other than Microsoft!
Microsoft has made a bed for itself that it seems does not want to sleep in. The bed I mention comes from my looking over the past with Microsoft, Microsoft unlike the rest of the computer world as I know working to gain together through standards for example, but Microsoft though made choices to distance itself to obtain a monopoly hold. I can’t say Microsoft has provided innovation I could find and recognize as being Microsoft, because looking back at Microsoft with respect to innovation in Microsoft’s history, so many times has turned out it was not Microsoft. Having learned more about this case and with an examination of i4i past dealings with Microsoft has made it clear now what this is about and I do not pull for Microsoft not to say I did. Change is comming for MIcrosoft and I believe that is a good thing for innovation in the computer world.
I read the i4i patent and it is a very simple software markup capability that was obvious to anyone skilled in the art of markup back in the ’80s. Microsoft will be able to contest its patentability with ease and rightly so. Not only that, but i4i’s patent application in Europe has been rejected. This is not uncommon, but the Europeans are very strict about issuing software patents in general and the chances that i4i gets their software markup capability by them are zero. I know this because I was just granted a software markup-related patent by them for my invention and it took 7 years of patent prosecution. In the end it took 7 hours of grilling in person by 3 patent examiners in the Hague who were all ex-programmers. i4i doesn’t have a chance.
Robert-
We shall see what happens, but so far the Patent Office has reviewed the application and the district court has reviewed the patent and Microsoft has been unable to prove in court that what you say is correct. Perhaps the Federal Circuit will agree with you, time will tell.
Europeans are very strict about software patents, and that is why there is no meaningful software industry in Europe. You can choose to think that is a good thing, but from an economic standpoint, growth, jobs and social standpoint the European position is extremely short sighted.
To be perfectly honest, the last people on the planet that should decide patentability are programmers. Programmers typically do not understand engineering principles or concerns, and simply do not understand software on a systems level. If what you say is true it is no wonder very little software gets patented in Europe and why the major software companies of the world do not reside in Europe.
-Gene