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Big Players Take Sides in Microsoft Patent Suit

As both sides ratchet up to argue their versions of a landmark patent infringement verdict next month, the small Canadian company that has won every battle in the case so far touts 22 “friend of the court” briefs in its favor. That list includes the U.S. government, and even a firm founded by a former […]

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Stuart J. Johnston

Mar 22, 2011

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As both sides ratchet up to argue their versions of a landmark patent infringement verdict next month, the small Canadian company that has won every battle in the case so far touts 22 “friend of the court” briefs in its favor.

That list includes the U.S. government, and even a firm founded by a former Microsoft (NASDAQ: MSFT) zillionaire.

However, Microsoft has its own list of big names lined up behind it as both sides gear up to argue the case in front of the U.S. Supreme Court.

At issue is more than whether Microsoft infringed Toronto-based i4i’spatentfor “custom XML editors” in older versions of Office and Microsoft Word. At stake is the standard by which patents are declared valid or invalid.

Besides the U.S. government, among the other parties that have filed so-called “amicus curiae” briefs on i4i’s behalf are 3M, Proctor & Gamble, General Electric, the Biotechnology Industry Ass., Genentech, and Roche Diagnostics.

Among the surprises on the list of those opposing Microsoft, however, is Intellectual Ventures Management, an invention firm founded by former Microsoft chief technology officer Nathan Myhrvold, who has recently filedsome patent suits of his own.

Additionally, some 19 venture capitalists also sided with i4i.

Meanwhile, backing up Microsoft with their own briefs is a smaller group of nearly as impressive players. Those include Google, Apple, Intel, Yahoo, Dell, HP, Facebook, Walmart, Toyota, Intuit, Netflix, HTC, and Verizon, as well as the Wireless Association (formerly CTIA) and the Electric Frontier Foundation, according to Seattlepi.com.

Microsoft and its supporters have argued that the standardfor invalidating patents is too high, while i4i’s supporters claim that Microsoft is trying to lower the standard to suit its own ends.

One notable group lining up behind i4i are four former commissioners or directors of the U.S. Patent and Trademark Office (USPTO).

I4i sued Microsoft in 2007 for incorporating its XML editing technology into Office 2003 and Word 2003, and Office 2007 and Word 2007. A jury found Microsoft culpable in 2009 and the company was fined approximately $290 million and ordered to remove the offending products from sale, which the company did.

Office 2010, which was released in May 2010, did not have the infringing code and, therefore, was not affected.

Microsoft has tried a series of appeals as well as taking the side path of challenging the validity of i4i’s patent with the USPTO, a move that the patent agency rejected last summer.

“The current approach taken by the Court of Appeals improperly tilts the scales to reward invalid patents. That approach needs to be corrected in favor of a system that ensures the process for obtaining and defending patents is clear, reasonable and doesn’t unduly burden the system or innovation,” David Howard, deputy general counsel for litigation at Microsoft, said in an email to InternetNews.com.

Meanwhile, i4i is standing firm as its lawyers ready themselves to face the court.

“It’s pretty clear it’s not just a tech issue anymore [and] it’s not just about one company,” Loudon Owen, chairman of i4i, told InternetNews.com.

“It’s now a battle over whether we will have an effective patent system,” Owen added.

Oral arguments in the case are scheduled for April 18.

Stuart J. Johnston is a contributing editor at InternetNews.com, the news service of Internet.com, the network for technology professionals. Follow him on Twitter @stuartj1000.