Thursday, 13 August 2009

Suspended injunctive relief, Texas-style

News of the East Texas Federal Court's injunction against Microsoft, ordering the software giant to cease sales of "any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML" , has spread fast. Predictably much of the initial reaction has been along the lines of (i) Microsoft must appeal, surely! (ii) can the court really do this to a product which has become a staple? and (iii) well, we always said that East Texas was a patent-friendly place. Less attention has however been paid to the details of the order itself.

The injunction was suspended for a period of 60 days. This was not to enable Microsoft to dispose of infringing stock in the hands of distributors and retailers, but rather to give the Microsoft, together with Toronto-based patentee i4i, a two-month window within which to speak to one another and reach a settlement. The gun pointing at Microsoft's head is the consequence that, if there is no settlement, the order comes into effect. The gun pointing at i4i's head is the risk of further expensive, and possibly protracted and unsuccessful, litigation at the appellate level. A further bit of wriggling may involve Microsoft working around the patented technology: while avoiding future infringement, that would not however rewrite the past.

PatLit wonders how, if this action had been litigated separately in the main jurisdictions in Europe, the national courts would have responded. Even three years after implementing the IP Enforcement Directive 2004/48, it's PatLit's guess that relief from patent infringement on the same facts would be treated very differently. Readers: this is your chance to respond.

Source: CNET news reports here and here


MaxDrei said...

Europe takes a view on the validity of an asserted claim that is different from that of the US patent litigation world. We don't have the same "presumption of validity". Instead, we have symmetry, with a "preponderance" standard on validity just as with infringement.

Thus, when every case that goes to trial in Europe is 50:50 on infringement and 50:50 on validity, patentee is going to "win" just one time in four. This thought appals Americans, but should it?

By the way, what's happening these days, in the long-running litigation all over Europe in which DSS asserts that another "staple", the Euro banknote, is an infringement of its patent? An injunction there would be more disruptive (at least on the mainland) than a ban on VISTA, no? I haven't heard anything for months and months. Does any reader have an update?

MaxDrei said...

This is a link to the Ebert blog, which contains a report on the case in Texas. I think the Ebert "take" somehow supports my comments above. I begin to wonder whether this "Gung-Ho" decision against Microsoft is politically inspired, as a timely push to the cause of "patent reform" in the US Congress. Be that as it may, I bet you that MS lobbyists are already milking it for all it's worth, in various corridors in Washington DC.