Microsoft protests $290m Word judgment

Denies bait and switch

A federal judge fundamentally misinterpreted a patent asserted against Microsoft Word, an error that should require a $290m infringement penalty to be overturned, attorneys for the software giant argued Wednesday.

"I don't think there's been a fair reading of this patent and this trial history," Microsoft attorney Matthew Powers said during a 90-minute hearing before the US Court of Appeals for the Federal Circuit, Dow Jones reports.

The hearing came as Microsoft appeals an injunction by lower-court judge permanently barring Microsoft from selling the 2003 and 2007 version of Word. The ruling was awarded in a case brought by Toronto-based software company i4i, which alleged the program infringed its patents covering extensible markup language technology. The lower court also ordered Microsoft to pay $290m in damages.

Microsoft attorneys acknowledged that the company had been in contact with i4i about the technology, but they said there was no evidence to prove anyone from the larger company actually read the patent. The claim is designed to counter a finding that the infringement was willful, which can substantially increase penalties in patent cases.

"I find it hard to believe that Microsoft didn't read the patent," Judge Alvin Schall, of the Appeals Court said, according to Reuters.

i4i has claimed that Microsoft deliberately set out to destroy its business while publicly proclaiming the two were allies. Microsoft's inclusion of custom-XML editing in Word from 2003 usurped its own invention and relegated its patented technology from a mainstay in the mass market to a niche player in the pharmaceutical industry, it has said.

The judges at Wednesday's hearing gave no indication when they may rule. The lower-court ruling is on hold while Microsoft's appeal is pending. ®