Microsoft Requests Judicial Review Of Word-Ban Case

Microsoft has asked for a review of a recent court decision, apparently wanting all 11 judges on the U.S. Court of Appeals for the Federal Circuit to review the complaint against it by Toronto-based i4i.

On 22 Dec, the U.S. Court of Appeals for the Federal Circuit decided to uphold the verdict in a patent-infringement case leveled by i4i against Microsoft, and ordered that Microsoft Word be pulled from store shelves by 11 Jan.

“We look forward to the next steps as the court considers our petition, while continuing to move ahead with our plans to comply with the injunction by 11 January,” Microsoft spokesperson Kevin Kutz told Reuters on 7 Jan.

The original verdict in the case, handed down in August, ordered Microsoft to remove copies of Word, which allegedly included code that violated i4i’s XML-related patent from store shelves, by mid-October. Microsoft appealed that decision, and on 3 Sept. the U.S. Court of Appeals for the Federal Circuit granted Microsoft’s request to keep selling Word for the duration of the court proceedings. Microsoft’s appeal also sought relief from the nearly $300 million (£186m) in accumulated fines related to the case.

Should the court uphold its verdict despite Microsoft’s most recent petition for review, Microsoft would still be allowed to provide technical support to customers. However, the company would be unable to instruct users on how to use the custom XML editor or to market copies of Word that allegedly violate the patent.

On 22 Dec, less than a day after the court upheld the verdict, Microsoft issued a patch that seemed to allow Word to sidestep the alleged infringement.

“With respect to Microsoft Word 2007 and Microsoft Office 2007, we have been preparing for this possibility since the District Court issued its injunction in August 2009 and have put the wheels in motion to remove this little-used feature from these products,” Kevin Kutz said in a 22 Dec. statement. “Therefore, 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” of 11 Jan.

That last sentence suggested that Microsoft could have fixed copies in stores by 11 Jan. The 12.9MB patch itself was immediately made available on Microsoft’s OEM Partner Centre Website. After its installation, any custom XML elements will be removed from documents with those file types.

On the OEM site, a note read: “Microsoft has released a supplement for Office 2007 (October 2009). The following patch is required for the United States. The patch will work with all office 2007 languages. … After this patch is installed, Word will no longer read the custom XML elements contained within DOCX, DOCM or XML files.”

In his 22 Dec. statement, Kutz indicated that Microsoft would continue to fight the case, particularly with regard to the massive fines leveled against it by the court.

“While we are moving quickly to address the injunction issue,” Kutz said, “we are also considering our legal options, which could include a request for a rehearing by the Federal Circuit Court of Appeals en banc or a request for a writ of certiorari from the U.S. Supreme Court.”

It seems increasingly clear now which strategy Microsoft has chosen to pursue.