Appeals court stays Microsoft Word injunction

Late yesterday afternoon, as first reported by the Seattle P-I, the Federal Circuit Court of Appeals in Washington, DC issued a stay of last month's Texas District Court injunction against the sale of Microsoft Word in the US, about one month before that injunction might have taken effect.

The stay will give Microsoft time to formally appeal its case, after having filed papers there two weeks ago. In what some are calling a clear display of brinksmanship, the company is pulling out all the stops, demonstrating it may be willing to forego the usual settlement if it can set precedent. Since the founding of this country, inventors have been granted legally protected monopolies in the markets generated by their inventions; and the US, unlike almost any other country in the world, considers the first inventor -- not the first to patent an invention -- as the proper title-holder of a patent.

A "first-to-file" provision in patent reform legislation still being debated in Congress would change that -- and Microsoft is on record as supporting that legislation. But in the meantime, the company intends to demonstrate that a viable market in the field of word processors and text editors that stored markup language code separately from content code within their binary files, even though that's not how the code appears on-screen. Microsoft was a part of that market, it will contend, along with other long-time competitors including WordPerfect.


The original plaintiff in this case, one-time Microsoft partner i4i, defends its patent for separating markup from content in the context of the market it serves: the pharmaceutical industry. Microsoft's arguments, judging from the appeal, will very likely include that i4i cannot claim patent legitimacy for a limited application of a concept that very obviously existed prior to the filing -- a bit like patenting the idea of driving a car to a hospital.

The Appeals Court's grant of Microsoft's motion comes one day after the company's Deputy General Counsel, Horacio Gutierrez, argued on his company's blog in favor of the creation of "a harmonized, global patent system" that would bring national patent offices together worldwide to jointly recognize the legitimacy of inventions. Gutierrez made the case that it's costing businesses too much to apply for various patents worldwide, knowing it could take as long as five years for the various nations' patent offices to reach a common conclusion about an idea.

"In today's world of universal connectivity, global business and collaborative innovation, it is time for a world patent that is derived from a single patent application, examined and prosecuted by a single examining authority and litigated before a single judicial body," Gutierrez wrote. "A harmonized, global patent system would resolve many of the criticisms leveled at national patent systems over unmanageable backlogs and interminable pendency periods."

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