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It may seem like a déjà vu situation to Microsoft’s legal team. The software giant lost an important patent infringement lawsuit on Tuesday, but the winning parties aren’t satisfied yet.
So on Wednesday, the plaintiff — a small holding company called VirnetX from Scotts Valley, Calif. — sued Microsoft (NASDAQ: MSFT) again, for the same infringement. However, this time VirnetX is going after Microsoft for using the infringed patents in Windows 7 and Windows Server 2008, according to the plaintiff’s filing in the new case.
In the earlier case, the jury found the infringing productsto be Windows XP, Windows Vista, Live Communication Server, Office Communication Server, Windows Messenger, Live Meeting Console, and Microsoft Office Communicator.
However, Windows 7 and Server 2008 weren’t covered in the original suit because neither product yet existed when the suit was filed in 2007. Windows 7 and Server 2008 were not released until the second half of 2009.
If the jury’s verdict in the first case is upheld, Microsoft will be on the hook for $105.75 million. If a new jury finds similarly in the new case, the losses could add up quickly.
Microsoft plans to request that the judge toss out the jury’s verdict and the damages award in that case, and will argue that VirnetX’s two patents are invalid.
In the new case, Microsoft is taking a similar tack.
“While we can’t comment specifically about the new complaint because we have not been served, Microsoft respects intellectual property, and we believe our products do not infringe the patents involved,” Kevin Kutz, Microsoft’s director of public affairs, said in a statement e-mailed to InternetNews.com.
“We believe those patents are invalid [and] we will challenge VirnetX’s claims,” Kutz added.
Law firm has a track record versus Microsoft
The new case was filed in the same court as the original suit — U.S. District Court for the Eastern District of Texas, Tyler Division.
The plaintiffs’ law firm — McKool Smith of Dallas — is also the same legal team that successfully sued Microsoft last year for infringing patents belonging to a small Toronto-based company, i4i.
Microsoft unsuccessfully appealed that verdict and award last year and is currently waiting to see if the appeals court will agree to rehear its appeal “en banc,” meaning by the entire appeals court at once.
Microsoft has not yet said whether, if the appeals court does not overturn the verdict in the i4i case, it will appeal to the U.S. Supreme Court.
Stuart J. Johnston is a contributing writer at InternetNews.com, the news service of Internet.com, the network for technology professionals.
