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Wednesday, May 12, 2010
US Patent Office Affirms i4i Patent - Rejects Microsoft Challenge


The United States Patent and Trademark Office (PTO) has confirmed the validity of the patents held by Toronto-based tech company i4i related to the XML, after a Microsoft's inquiry to put them into a reexamination proceeding.

The United States Patent and Trademark Office (PTO) has confirmed the patentability of all claims of the U.S. Patent 5,787,449 ('449) that had been put into a reexamination proceeding by Microsoft.

Loudon Owen, Chairman of i4i, says, "This is a very material step in our litigation against Microsoft. Put simply: i4i's patent is clearly and unequivocally valid. Even though Microsoft attacked i4i's patent claims with its full arsenal, the Patent Office agreed with i4i and confirmed the validity of our '449 patent." Mr. Owen adds,

The i4i dispute is over a method of processing electronic documents using embedded codes that provide instructions on how information appears. i4i had accused Microsoft for infringing a patent relating to the use of XML, or extensible markup language, in the 2003 and 2007 versions of Word.

In March 2007, i4i sued Microsoft for willful infringement of its '449 patent. Awaiting trial, in late 2008, Microsoft filed an ex parte application with the PTO seeking a reexamination of certain claims of the '449 patent. Based on Microsoft's representations, the PTO agreed to reexamine the patent. As a matter of procedure, any patent claim subjected to reexamination should be viewed as only 'provisionally invalid' until the reexamination is complete. While defendants often tout an interim finding of 'provisional invalidity' as being profoundly important, what it simply means is the PTO is conducting a serious and detailed review of an existing patent and that the onus is placed back on the shoulders of the patent owner to prove the patentability of the contested claims.

On May 20, 2009, Microsoft was determined to have willfully infringed i4i's '449 patent. On August 11, 2009, i4i was granted a Final Judgment against Microsoft that included both an award of damages to i4i and a permanent injunction.

Microsoft unsuccessfully appealed the decision to the Court of Appeals for the Federal Circuit late last year, and also unsuccessfully sought a rehearing of the decision of the Court of Appeals earlier this year.

According to the ruling, Microsoft would be prevented from selling infringing versions of Word from January 11, 2010. This applied only to copies of Microsoft Word 2007 and Microsoft Office 2007 sold in the U.S. on or after the January 11, 2010. Copies of these products sold before this date were not affected.

Throughout the process, Microsoft has made extensive reference to the concept that the patent was 'provisionally invalidated by the PTO'. Confirmation of the validity of i4i's '449 patent should put this matter to rest. An NIRC (Notice of Intent to Issue Ex Parte Reexamination Certificate) was issued April 28, 2010, and a Reexamination Certificate will be issued in due course by the PTO which will formally conclude the reexamination proceeding favorably for i4i.


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