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The U.S. Patent and Trademark Office‘s recent confirmation of the validity of a patent that netted i4i Limited Partnership a $290 million infringement judgment against Microsoft Corp. means the U.S. Supreme Court is likely Microsoft’s last hope to overturn the judgment.
On Tuesday, i4i announced that the PTO affirmed the patentability of all the claims in its patent for processing and storing information about electronic documents’ structure. In its lawsuit, i4i claimed that Microsoft Word 2007 infringed that patent, and Microsoft had requested a re-examination in the hopes that the PTO would declare the patent invalid. The PTO has yet to issue a formal certificate confirming the patent’s validity, but the agency informed Canadian software company i4i of its notice of intent to issue an ex parte re-examination certificate on April 28.
In an e-mailed statement, Kevin Kutz, Microsoft’s director of public affairs, said that while the company is disappointed, “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.”
Microsoft’s bid to use its request for a patent office re-examination of i4i’s patent “has failed in a dramatic way,” said i4i’s lawyer for the re-examination, Rob Greene Sterne, founder of Washington-based Sterne, Kessler, Goldstein & Fox.
Microsoft filed its PTO re-examination request before the jury verdict but well into the lawsuit, probably as a backup plan in case it lost the lawsuit, Sterne said. “Microsoft, I’m sure, assumed that they would win the re-exam or create significant difficulties for i4i in the re-exam that would drive a better settlement,” he said.
Lawyers say that unless Microsoft finds grounds for a motion for relief from judgment, such as newly discovered evidence or fraud, the U.S. Supreme Court is its last avenue.
Microsoft is “pretty much at the end of their line” unless the Supreme Court takes its case as one of the handful of patent matters the Court hears each year, said Thomas Engellenner, the co-chair of the patent practice group at Boston’s Nutter, McClennen & Fish. Engellenner wasn’t involved in the case.
via Law.com – Microsoft Dealt Major Setback Over $290 Million Infringement Judgment.
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