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Intellectual Property Law

: IPKat

Letter from AmeriKat I: Patents (Microsoft, HTC, Bilski)

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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Last weekend readers may have noticed a slightly auspicious absence of the AmeriKat. The AmeriKat prides her reputation on ensuring that she delivers reports on the latest and greatest of that week's US IP news irrespective of the external elements that may be inflicting her - through sickness and health, 60 hour working weeks, or exams. However, last weekend, the AmeriKat encountered a hurdle that even she could not leap over like the feline beast of prey that she is. Entering her cat-flap Saturday morning after her morning chai tea latte run, she experienced a dripping then pouring of water on her head through the ceiling and light fixtures thanks to a water fault in the flat above. (picture, top left - the AmeriKat soaking and not happy about it) Like all Kats, the AmeriKat did not take to well to this and so with her fur and paws soaked and the water and electricity off all weekend her weekly report sunk to the bottom of her flat-cum-aquarium.

Is Microsoft one bad day away from a Supreme Court petition in the i4i battle?

While the rain was literally and figuratively coming down on the AmeriKat's head, the storm clouds that have been nestled over Microsoft's i4i saga over the past three years may have finally burst. Last Tuesday, i4i announced that the USPTO confirmed the validity of all the claims in one of the patents subject to the dispute in the i4i v Microsoft litigation which saw i4i receive a $290 million jury award (see previous IPKat posts here). The large jury award was later upheld by the Circuit Court of Appeals and Microsoft's subsequent appeals to the US Court of Appeals for the Federal Circuit were not granted. Prior to the original jury verdict, Microsoft had requested that the USPTO re-examine i4i's patent related to the customization and processing of extensible markup language, or XML (No. 5,787,449) in the hope that the patent would be declared invalid.

Kevin Kutz, Microsoft's Director of Public Affairs stated

"We are disappointed, but 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 potential petition for a grant of certiorari would most likely be based on the scope of discretion that appeals courts should give to jury verdicts. Readers may recall, that Microsoft's first (of many) appeals in the Eastern District of Texas focused on the issue of damages and remittitur (where the jury award is unreasonable, a party can apply for a judge to lower the award) of damages. It is clear that the sting of the jury's high award of damages has been seemingly long-lasting for Microsoft.

i4i's Chairmain, Loudon Owen stated in a press release that the

" '449 patented invention infuses life into the use of Extensible Mark Up Language (XML) and dramatically enhances the ability to structure what was previously unstructured data. As the magnitude of data grows exponentially, this is a critical technological bridge to controlling and managing this sprawling octopus of data and converting it into useful information."

According to the AmeriKat's calculations Microsoft has apparently until 30 June 2010 to file their petition to appeal to the Supreme Court. Anyone want to place a bet that they do?

HTC: Quietly brilliant...(but not so quietly suing Apple!)

A few weeks ago the AmeriKat wrote about the latest in the patent mobile wars (see post here) and explained that the mobile patent litigation has become so complex she has had to draw a diagram.

Well this week, she has had to add another arrow to her diagram - this time from HTC to Apple. Last Wednesday, HTC announced that it filed a complaint with the US International Trade Commission (ITC) to prohibit the importation and sale of the iPhone, iPad and iPod in the U.S. The complaint involves 5 of HTC's patents which are allegedly infringed by the Apple products, but which have yet to be disclosed. Jason Mackenzie, VP of HTC North America stated:

"As the innovator of the original Windows Mobile PocketPC Phone Edition in 2002 and the first Android smartphone in 2008, HTC believes the industry should be driven by healthy competition and innovation that offer the consumers the best, most accessible mobile experiences possible. We are taking this action against Apple to protect our intellectual property, our industry partners, and most importantly our customers that use HTC phones."

Some may think "Gutsy!", others who have been following this saga will be saying "Unsurprising!". In March, Apple sued HTC for violating its patents. Two weeks ago, Microsoft and HTC announced a licensing deal of Microsoft's patents relating to the mobile technology to HTC. So, diagram at the ready...could it be, that Microsoft's patents which are subject to the licence agerement with HTC could also be subject of the HTC complaint against Apple? Is this a roundabout way for Microsoft to go after Apple? Speculation across the Internet abounds, but no concrete information has yet to be placed in the AmeriKat's paws.

The AmeriKat has not been able to find any further details of the ITC complaint as of yet, but will keep readers posted. For further information see this report in PC World.

Re Bilski, Bilski! wherefore art thou Bilski?

Not at thy Supreme Court decision table yet, so it seems. The IPKat and AmeriKat's good friend, Technollama, likens waiting for the Bilski decision to Waiting for Godot and the AmeriKat cannot agree more! The AmeriKat is anticipating the much-anticipated Supreme Court decision in Bilski any day now so keep your eyes and ears tune in to IPKat.

Full post as published by IPKat on May 14, 2010 (boomark / email).