Microsoft Snubbed Again in $290M MS Word Patent Case

Dennis Faas's picture

One of Microsoft's last hopes of escaping a $290 million fine for MS Word patent violations has once again fallen by the wayside. It means the company must either hope for an unlikely hearing at the Supreme Court, or pay up the cash.

The case involves XML, a variant on web programming language HTML. Whereas HTML only covers the formatting and presentation of data, XML allows for description and classification of the content of that data.

Series of Appeals End in Failure

Microsoft Word lets users open XML documents, but the technique it uses to do so was ruled to have breached a patent by Toronto, Canada company i4i. It was fined $200 million, though that figure increased to $290 million with costs and an added penalty for inappropriate courtroom behavior.

A series of appeals by Microsoft ended in failure. Most recently it asked for an "en banc" review, meaning its appeal would be reheard by the entire panel of Federal appeals judges, rather than just the three which considered the original Federal appeal. That request was turned down, which wasn't a major shock as such reviews are relatively rare and limited to cases involving questions of major legal principle.

MS Tries to Deem i4i's Patent Invalid

It appeared Microsoft's last chance was a tactic it actually launched during the original trial: a request for the US Patent and Trademark Office to declare the patent invalid. That might seem a self-contradictory suggestion, but it's not unknown for the USPTO to change its mind after giving a patent a more detailed examination.

That's not happened this time, however. According to i4i, the USPTO has completed its review and confirmed it will issue an "ex parte reexamination certificate". That will confirm for the benefit of the courts that it has taken a closer look at the patent and concluded that it still stands.

Supreme Solution is Microsoft's Last Chance

Microsoft has issued a statement saying that "there still remain important matters of patent law at stake, and we are considering our options to get them addressed, including a petition to the Supreme Court." (Source:

That seems very unlikely to succeed. To get a hearing, Microsoft would have to put together an argument that the case involves a significant question of law, rather than fact. It would then have to successfully argue that this question was more important than other issues vying for the Supreme Court's time. (Source:

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