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I4i takes on Microsoft claims in latest brief

I4i responds to Microsoft's defenses concerning XML patent infringement case involving Word.

Lance Whitney Contributing Writer
Lance Whitney is a freelance technology writer and trainer and a former IT professional. He's written for Time, CNET, PCMag, and several other publications. He's the author of two tech books--one on Windows and another on LinkedIn.
Lance Whitney
3 min read

Update, 11:10 a.m. PST: Added response from Microsoft.

I4i said Wednesday that it refutes the latest claims made by Microsoft in an XML patent infringement case involving Word.

I4i Chairman Loudon Owen called Microsoft's claims "the same weak defenses Microsoft repackaged from the trial and raised on appeal."

Following its recent appeal, Microsoft was granted a stay of an injunction last week that would have forced the company to stop selling Word in its current form by next month.

In its appeal, Microsoft criticized the district court that ordered it to stop selling Word, claiming the judge made several errors and didn't fulfill his responsibility as a gatekeeper.

But in its responding brief filed in the U.S. Court of Appeals for the Federal Circuit on Tuesday, I4i leveled several charges against Microsoft.

"Microsoft repeatedly attacks the district court's performance as a 'gatekeeper,' said I4i in the Responding Brief. "But Judge Davis has a substantial track-record in patent cases, and Microsoft's criticism of him as unable (or unwilling) to fulfill his duties is nothing less than an unfair attempt to divert attention from what really happened."

I4i also cited specific areas where it believes Microsoft's attacks on the court are misguided, including an I4i survey that the court used to determine damages.

"In criticizing the survey testimony that formed the basis of I4i's damages claims, Microsoft demands a level of perfection that this Court has never required and few surveys would ever meet. I4i's survey was designed, conducted, and analyzed using accepted methodology, and its admissibility was beyond legitimate question. Moreover, in arguing that I4i's survey respondents were inadequately screened, Microsoft relies on inaccurate and cropped quotes from the screening questions. Most egregiously, though, Microsoft repeatedly distorts this Court's case law."

In a response to CNET News, Microsoft spokesperson Kevin Kutz issued the following statement: "We're looking forward to the hearing on the merits of our appeal." The next hearing is scheduled for September 23.

In the brief, I4i also accused Microsoft of intentionally taking its technology.

"When it suited its purposes, Microsoft touted I4i as a 'Microsoft Partner' able to provide software that Microsoft could not. But behind I4i's back, Microsoft usurped I4i's invention, destroying I4i's ability to compete in the market that it had created."

I4i also recounted its history of partnering with Microsoft on the XML (Extensible Markup Language) feature.

"Word, the dominant word processing software, could not always work with XML documents. In fact, when the U.S. government requested that functionality in 2001, Microsoft turned to I4i for help and the two companies worked together to provide a solution. The partnership ended, however, when Microsoft incorporated into Word (then the 2003 version) the capability that I4i had been providing (i.e., the ability to work with XML documents). Since then, I4i has struggled to maintain any position in the market."

In another point in the brief, I4i refers to the timing of its patent.

"I4i began selling products covered by the '449 patent before Microsoft's infringement, and the accused functionality in Word can be removed without any impact on the overall product. In short, the injunction is both proper and necessary to protect I4i's rights."

"I4i is confident we will prevail on appeal," said Owen. "We believe the Final Judgment in favor of I4i, which included a finding of willful patent infringement by Microsoft and an injunction against Microsoft Word, was the correct decision."

The case goes back to March 2007 when Toronto-based I4i first filed suit against Microsoft, claiming the company's use of certain XML features in Word infringed on an I4i patent.