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April 10, 2009


Singapore-based Uniloc sued Microsoft in 2003 over 5,490,216, which claims a system for software product activation, which Microsoft uses in its Windows operating systems (XP, Windows Server 2003) and Office (XP version). '216 has a 1992 priority date. Wednesday, a Rhode Island jury found the patent valid, and Microsoft willfully infringing. The tab: $388 million, with $194 million attributable to foreign activations.

In the first round, Judge William E. Smith granted summary judgment for Microsoft, finding that Uniloc had been unable to demonstrate infringement, namely, that the same algorithms were used on both the client and server side of Microsoft's activation system. That was overturned on appeal.

The trial leading to the verdict began March 23.

Reeling with denial, Microsoft snorted, "We believe that we do not infringe, that the patent is invalid and that this award of damages is legally and factually unsupported. We will ask the court to overturn the verdict."

Failing judicial reversal in this case, or coming to settlement terms, Microsoft is headed towards a succeeding assertion against more recent products, and a stiffer tab. $388 million is in the neighborhood of the fifth largest jury award.

Uniloc practices the '216 invention, selling a software toolkit to developers that offers flexible licensing terms, such as trial periods.

Posted by Patent Hawk at April 10, 2009 12:22 AM | Litigation


I for one am glad that MS got their just deserts for implementing this "featurelol". It plainly only makes the software harder to pirate, which is always a shame for them, because the harder it is for me to pirate their software the more likely I am to go to a competitor's product.

Now, you might be thinking, 6, how is that shame for them since you're pirating their products? If you think about it long enough though, you'll understand why.

Posted by: 6000 at April 10, 2009 8:21 AM

But isn't Mmmmmmmm Soft one of your patent fairness coalition B buddies? You seem awfully ungrateful to one of the major sponsors of your favorite lobbying efforts.

Posted by: broje at April 10, 2009 2:24 PM

Judge Smith just opted for the quite-rare gambit of overturning a jury verdict -- Hunh??

Googling yields this info:

Judge Smith's background is in labor law and criminal law. He sounds funny claiming that a jury failed to grasp the complex issues of the case -- patent law is an arcane specialty, totally separate and different bar exam, for those who don't know.

Judge Smith refused to grant a Uniloc motion early in the case, he refused to recuse himself. Then he tried to sweep Uniloc under the carpet by granting Summary Judgment for Microsoft ( = "no need for a jury, Microsoft just wins") -- but he got SLAPPED by the appellate court, was overruled and specifically told not to rule on the case without hearing from a jury.

So, what does lifetime-tenure-appointed Smith do? He thumbs his nose at the jury, the appeals court and the American system of civil justice. He lets the jury have its day, then issues a BALDERDASH ruling (read it for a laugh), which essentially says: "See, told you I didn't need a jury."

Funny, but Judge Smith's opinion uses the adverb "Unsurprisingly," to begin a sentence illustrating a rather mundane point to the effect that while Microsoft had claimed so-and-so at trial, "Unsurprisingly," Uniloc disagreed and presented a different position. Taking a cue from Judge Smith, one could well write:

"Unsurprisingly, Judge William Smith, whose initial grant of Summary Judgment for Microsoft was overturned and the case remanded for trial, well, unsurprisingly ol' Judge Smith, after six years of legal wrangling and a long trial, he got his revenge against his overseers by performing the rare act of overturning a diligently rendered jury verdict."

Of course, Judge Smith did the usual dance of always trotting out the guarding, prefatory lingo in the introduction of the paragraph issuing his shocker:

"After careful consideration of the arguments and the evidence, and mindful of the limitations placed upon the Court in ruling upon a post-trial motion for judgment as a matter of law (JMOL), the Court grants JMOL of non-infringement in Microsoft’s favor."

I note that various patent law bloggers started complaining about Judge Smith way back when he granted SJ for MS (overturned, of course), e.g. from a commenter on Patent Prospector, http://www.patenthawk.com/blog/2008/08/summary_misjudgment.html, who a year ago wrote:

". . .the judge informed Uniloc that it had no “veto power” over his hiring of chambers staff and that Uniloc’s only recourse was to move for recusal of the judge himself. Uniloc filed a motion for recusal of the judge, which was denied.

What BS. I've never seen a federal court judge who had no power to decide who his intern is. But it gets worse. Moore denied the recusal motion because:

"an objective, knowledgeable member of the public would not find reasonable basis in doubting the judge’s impartiality given that the intern had no financial stake in the outcome of the case."

OK, so the judge says "if there's a problem w/ the intern you gotta' recuse me," but Moore's analysis is on the indisputable grounds that the judge himself has no connections to MS. Phfftttt.

These MS cases smell real bad. Follow this intern's career and see if he/she doesn't end up as MS counsel. MS's next step in this case will be a charge of inequitable conduct. Mark my word."

For continued laughter, listen to the song "Fuddy Duddy Judge" by Deee-Lite. I hope Uniloc appeals again and Judge Smith gets slapped again.

Jonathan Burdick
Pierce Law 1990

Posted by: Jon Burdick at September 30, 2009 8:01 AM