Judge Davis Orders Microsoft to Stop Selling Word

As many of you undoubtedly already know, Judge Leonard Davis granted plaintiff i4i's motion for a permanent injunction following a jury verdict in the case for infringement of US Patent No. 5,787,499, which covers software controlling document architecture and content and enables individuals to manipulate electronic documents without using manually embedded command codes (i.e., A/K/A "XML"). (see my previous posts here)

I've read the order, and it does a pretty good job of setting forth factors justifying an injunction according to the Supreme Court's new standard in Ebay. This certainly sounds like the sort of case where an injunction is appropriate. Let's hear it for Judge Davis for putting some teeth back in our patent system! I don't think it is realistic to think that Microsoft will actually pull Word. Further, there are some things that Microsoft can do at the appellate court level to try and get the injunction lifted, they are no doubt in the process of filing papers with the CAFC seeking to stay enforcement of the injunction pending appeal. My money, however, is on settlement.

The order is attached below, and here is are some snippets:

"First, i4i has overwhelmingly shown that it has been irreparably injured by Microsoft’s continuing infringement of the ‘449 patent and could not be compensated with monetary damages. The fact that there is direct competition in a markplace [sic] weighs heavily in favor of a finding of irreparable injury."

"i4i’s damages expert also testified that Microsoft’s entry into the custom XML marketplace rendered i4i’s products obsolete in 80% of that market."

"In response to i4i’s claims of direct competition, Microsoft presents evidence that i4i’s current products are designed to be compatible with Microsoft’s infringing WORD products and that Microsoft’s entry into the market allowed such “add-on” products to succeed. . . . This argument entirely misses the point. The fact that i4i is capable of existing in a marketplace where Microsoft is infringing does not negate the injury incurred as a result of Microsoft’s infringement."

"The evidence shows that i4i lost a, perhaps irretrievable, opportunity in the early days of the custom XML market. See PX 172. This continuing loss of market share and brand recognition is the type of injury that is both incalculable and irreparable."i4iOrdergrtnginjuntion.pdf