Just a day before a crucial hearing in the patent infringement case between Canadian developer i4i and Microsoft, i4i's top executive said that the injunction that forbids Microsoft from selling Word could be reinstated.
Last month, a federal judge barred Microsoft from selling current versions of Word 2003 and 2007 as of Oct. 10, part of the punishment for losing the case brought by Toronto-based i4i in 2007. But after Microsoft warned that sales chaos would result, the U.S. Court of Appeals stayed the injunction earlier this month.
Microsoft was also hit with $US290 million in damages in the case.
"The wording of the court order -- it said it was staying the injunction 'pending appeal' -- is not a highly-specific order," said Loudon Owen, i4i's chairman, in an interview today. "We're awaiting its interpretation. Oweb said that it's unclear whether the wording could be taken to mean that the stay would hold until the end of the appeals process, or perhaps only until the three-judge panel hears oral arguments tomorrow.
"This is the classic [phrasing] for a stay, but it leaves a great deal of discretion in the hands of the judges," Owen added.
Owen declined to say whether i4i's lawyers would bring up the injunction or the wording of the stay order during the oral hearing slated for Wednesday in Washington D.C.
But he dismissed Microsoft's warning that the injunction might force it to pull Word 2003 and Word 2007, as well as the associated suites, Office 2003 and Office 2007, off the market for months while it removed the "custom" XML feature that's at the center of the legal dispute.
"If we look at the record, Microsoft has had extensive time to make modifications to Word," said Owen. "We filed [the lawsuit] in March of 2007, and said then that we would seek an injunction. Microsoft has had ample time. The jury verdict was in May."
Owen also declined to comment on how long i4i thought it would take Microsoft to revise Word. "We haven't seen the source code," he acknowledged. "But Microsoft's apocalyptic prediction was unfair."
Two months ago, a long-time patent attorney said he thought Microsoft could easily make a technical fix to Word, then sell the new version in the U.S. According to the original injunction, Microsoft is not required to update copies of Word 2003 and 2007 already in customers' hands.
Hewlett-Packard and Dell, the top-two PC makers worldwide, disagreed with the attorney's belief. The two OEMs, who asked to be granted "friend of the court" status in the appeal, said that changes to Word would "require extensive time- and resource-consuming retesting" on their part. Many new computers come with Microsoft's Office or a trial version of the productivity suite; HP and Dell said they would have to rebuild the disk images they use to factory-install software on their new PCs.
According to i4i, Microsoft began adding XML editing and custom XML features to Word shortly after meeting with the company in 2001. Microsoft has denied the charge, saying i4i distorted the facts.
"After a handful of meetings there weren't fruitful, i4i and Microsoft went their separate ways and Microsoft later released the custom XML functionality for Word that it had told i4i it was developing," the Microsoft's lawyers said in a brief filed last week .
Owen refused to speculate about what i4i hoped to get out of tomorrow's hearing, other than to say, "We expect a fair hearing."
He also dodged questions about what i4i would do if the appeals court overturned the jury verdict. "It's hard to look past the appeal," he said, but promised that if Microsoft is granted a retrial -- something the American developer has asked for at minimum -- i4i would continue the battle.
"This is certainly an important case to us," Owen said, "but it's also important to any inventor or entrepreneur who invents technology."
Both Microsoft and i4i have promised to comment after tomorrow's hearing.