|By Maureen O'Gara||
|January 15, 2010 06:45 PM EST||
Having lost one appeal of the i4i patent infringement decision ordering Word off the market at a cost of $290 million in damages, Microsoft last Friday asked the U.S. Court of Appeals for the Federal Circuit for a rare en banc review of its Christmas decision.
It wants all 11 judges to listen to its complaints, not just the three who found for i4i on December 22. If that doesn't work, it has threatened to try the Supreme Court, a real long shot.
According to Microsoft's director of public affairs Kevin Kutz, "The petition details significant conflicts we believe the December 22 decision creates with established precedents governing trial procedure and the determination of damages, and we are concerned that the decision weakens judges' authority to apply appropriate safeguards in future patent trials."
Aside from claiming the i4i patent is invalid, Microsoft has called the damage award - the real point of its appeal - "grossly excessive" considering only about 2.1 million people ever used the functionality and it objects to the lottery-style way an expert witness came to the base number of $200 million, later swollen by interest and a lawyer's so-called improper argument comparing i4i to a "bank seeking bailout."
Meanwhile, since the injunction went into effect Monday, Microsoft has been deleting the little-used functionality that opens documents containing custom XML in the older versions of Word and Office affected by the decision. It called the process "imperceptible to the vast majority of customers" although it did pull most versions of Office off its online store Monday.
It's rare that such a widely used product is permanently enjoined.
The order doesn't impact any copies of Word in the field, only new sales, and Office 2010 never included the functionality.
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