Patent Law

Microsoft v. i4i (Fed. Cir. 2009)

Without substantive opinion the Federal Circuit has stayed enforcement of an injunction against Microsoft that could have forced the software giant to stop selling its flagship product Word. Absent further rulings, the stay will be in force until Microsoft's appeal is decided on the merits -- likely extending into 2010. In August 2009, the lower court found Microsoft liable as a willful infringer of i4i's patent relating to xml document processing - a function of Word '03 and '07. That court ordered Microsoft to stop infringing by October 10, 2009.

The Stay order indicates that:

"Without prejudicing the ultimate determination of this case by the merits panel, the court determines based upon the motion papers submitted that Microsoft has met its burden to obtain a stay of the injunction."

Interestingly, the stay order indicates that it is a per curium decision, but the order was signed by the Federal Circuit Clerk Jan Horbaly "for the court." I see this as an indication that the judges assigned to the merits panel do not yet want to reveal their identities.

The unfortunate part of this decision is that it does not define what it takes to meet the "burden to obtain a stay of the injunction" - especially in the wake of eBay. How does the court go about deciding whether to stay relief? How important is the fact that briefing of the merits are being expedited? What role did the amicus briefs by HP and Dell play in the decision?