i4i Files Response Brief at CAFC

Software maker and recently successful patent enforcer, i4i, filed its responsive brief yesterday in the appeal filed by Microsoft. In this high profile patent infringement case, Microsoft was found by a Texas jury to have infringed US Patent No. 5,787,449 on a method for reading XML, and ordered to pay over $280 M in damages for willful infringement. Microsoft was also ordered to stop selling its popular WORD product by October 10, 2009. Recently, the CAFC stayed enforcement of this injunction while the parties continue to battle it out on appeal.

i4i is represented by seasoned appellate counsel, Don Dunner, as well as a host of other very good lawyers from Finnegan Henderson. This brief is very well done. It does an especially good job of restating the [way too] many issues raised by Microsoft's opening appeal brief.

In a very smart tactical move, Finnegan's counter statement of the issues breaks up Microsoft's brief into several sub issues, essentially stating that the Software Giant claims that no fewer than 13 substantive errors were made by a very experienced and respected district court judge; an unlikely story and one that is used skillfully by Dunner and his team to erode the Appellant's credibility. In reality, there are probably an additional two or three more issues raised by Microsoft's appeal that weren't called out in Finnegan's counter statement.

Here is a snippet from Finnegan's preliminary statement:

Microsoft repeatedly attacks the district court’s performance as a
“gatekeeper.” But Judge Davis has a substantial track-record in patent cases, and
Microsoft’s criticism of him as unable (or unwilling) to fulfill his duties is nothing less than an unfair attempt to divert attention from what really happened. When it suited its purposes, Microsoft touted i4i as a “Microsoft Partner” able to provide software that Microsoft could not. But behind i4i’s back, Microsoft usurped i4i’s invention, destroying i4i’s ability to compete in the market that it had created.

i4iResponseBriefCAFCSept9.pdf