Microsoft requests another hearing in Custom XML patent infringement case

Microsoft already has issued a patch that removes Custom XML from Office/Word 2007 after losing a patent infringement case involving that technology. But that isn’t stopping the Redmondians from seeking another hearing in the i4i matter.

On January 8, Microsoft filed a request seeking such a hearing. Kevin Kutz, Director of Public Affairs for Microsoft, sent me the company’s statement via e-mail. It reads:

“Today Microsoft filed a petition with the United States Court of Appeals for the Federal Circuit for both panel rehearing and rehearing en banc in the i4i case. 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. We look forward to the next steps as the Court considers our petition, while continuing to move ahead with our plans to comply with the injunction by January 11, 2010.”

From Microsoft’s rehearing petition:

“This case is symptomatic of the new wave of patent litigation where aggressive plaintiffs substitute purported ‘expert’ testimony for actual evidence and seek lottery-like verdicts without any connection to the real world.”

The Microsoft rehearing petition called the damages award ($200 million) “egregiously excessive.” (That amount was supplemented by another near $100 million in fines, etc.)

In December, after Microsoft lost its appeal and the Federal Circuit Appeals Court awarded i4i nearly $300 million in the patent infringement case, Microsoft was told it had until next Monday, January 11, to remove the offending technology from copies of Office and Word that were sold on or after that date.

Late last year, Microsoft issued a patch for OEMs designed to remove Custom XML from Office 2007 and Word 2007.

Before the ruling, Microsoft officials warned of major disruption to its customers and partners if it were told to remove Custom XML from its products. After Microsoft lost its appeal in the case in December, its officials said that few individuals actually used Custom XML.

The Custom XML ruling has no impact on SharePoint or any other Microsoft technologies outside of Office and Word 2007.

Update: It seems Custom XML is part of Office 2003 and Word 2003, as well. Microsoft has pulled Office 2003 from its MSDN and TechNet sites and is attributing that decision to the i4i court ruling. I’ve asked Microsoft for further information on Custom XML and Office 2003 and will add any further specifics once I hear back. Here’s more info on how to tell whether your version of Office is affected by the ruling, from a posting by a Microsoft official official in December.

Microsoft did not include Custom XML in the beta builds of Office 2010, company officials said. Custom XML is not related to Open XML; instead, it is technology for adding support for custom-designed schemas that is designed to integrate business data and processes with documents.



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