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Microsoft Trial Misconduct Cost $40 Million
SpuriousLogic writes "The judge who banned Microsoft from selling its Word document program in the US due to a patent violation tacked an additional $40 million onto a jury's $200 million verdict because the software maker's lawyers engaged in trial misconduct, court records reveal. In a written ruling, Judge Leonard Davis, of US District Court for Eastern Texas, chastised Microsoft's attorneys for repeatedly misrepresenting the law in presentations to jurors.'Throughout the course of trial Microsoft's trial counsel persisted in arguing that it was somehow improper for a non-practicing patent owner to sue for money damages,' Davis wrote. The judge cited a particular incident in which a Microsoft lawyer compared plaintiff i4i, Inc. to banks that sought bailout money from the federal government under the Troubled Asset Relief Program. 'He further persisted in improperly trying to equate i4i's infringement case with the current national banking crisis implying that i4i was a banker seeking a "bailout,"' Davis said."
Microsoft... vs... patent trolls.. who do I hate??
Call me crazy, but I would consider it "improper for a non-practicing patent owner to sue for money damages" (although, yes, obviously not illegal). It does not bode well that judges are saying this sort of thing.
On the other hand, it is ironic that it's Microsoft making this argument, as they don't usually practice what they preach.
On one hand, it's fun to see Microsoft getting punished, on the other, I happen to agree with Microsoft's argument with regard to patent trolls.
I think Microsoft might have made out better this way anyway. Arguing to invalidate the patent could have hurt them and their practice of patent filing and arguing Bilski could have really blown the lid off of things. In short, they more or less had to defend "software patents" while at the same time finding a legal argument against the plaintiff.
Instead of trying to educate the jury that the whole point of "Extensible" markup language is to extend and customize the files the lawyers were pulling stunts. In the tragedy of errors, I cant decide who to root for.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
If we could see the court transcript, we'd have more info about why MS were fined x, y, z.
If someone has a PACER account, they could put the transcript on archive.org simply with the RECAP plugin:
* https://www.recapthelaw.org/
And then we could have a more complete picture on http://en.swpat.org/wiki/I4i_v._Microsoft
Please help publicise swpat.org - the software patents wiki
I read down to "eastern district of texas" before figuring out what was going on.
MS complains that patent trolls should get a life and make a product, judge slaps 40 mil on top of the 200 mil product. Time for software providers to stop doing business in ED Texas (or all of Texas, if necessary). I'm not sure what sort of patent they ran into (probably "putting words onto computer" sometimes equally obvious/prior art'd), but how that could equate to a quarter billions is beyond me.
I knew patent trolls employed lawyers, but I had not realised they employed judges too.
"Oops, I always forget the purpose of competition is to divide people into winners and losers." - Hobbes
$2 million for mp3s, $40 million for a bad argument.
Do these judges send a $10 million bill to toilet paper companies when they have to wipe their backside?
If we had the transcript, maybe we could see:
The court transcript, even though it's a public domain document, is only provided to people by the court if they make an account and pay 8c per page. Once you have the page, since it's public domain, you can post it anywhere. RECAP is a Firefox or IceCat plugin that can automatically post those public domain transcripts to archive.org so that we can all read them and link to them, and that would help with documenting case law in the USA on swpat.org, among other things.
Please help publicise swpat.org - the software patents wiki
will they wake up and fight for abolishing software patents. Good to see....
If you keep throwing chairs, one day you'll break windows....
$40m sounds like a lot, but that's 0.07% of microsoft's revenue stream. The judge basically flicked M$ on the ear for that argument.
while(1) attack(People.Sandy);
A lot of American Judges are just plain idiots.
$2 million for mp3s, $40 million for a bad argument.
Do these judges send a $10 million bill to toilet paper companies when they have to wipe their backside?
I don't have points to mod you up, but the judges do need to have their heads and their asses examined.
Prosecutor: K, number one, your honor, just look at him. ...and b, we've got all this, like, pfff, evidence
Defense attorney: He talks like a fag, too.
Prosecutor:
[...]
Prosecutor: I know! And I'm all, you gotta be shittin me, but check this out, man. Judge should be, like, guilty! Peace.
$40m is still about a million copies of Windows to sell... that's like losing all the revenue stream from sales to a major city.
"If anything can go wrong, it will." - Murphy
...that is all this and all other fines to Microsoft and the BIG corps has ever amounted to.
How about the judges start with the FBI man from National Treasure ....
SOMEBODY HAS TO GO TO JAIL.
In news reports this morning some hot chick [works for MS? or Faux New?] regurgitated the same "we are innocent and will appeal" and how people are "so used to" using Word they will not know what to do.
How about people that buy computers actually LEARN how to use them and the software that is available.
Remember MS has been convicted 3 times of operating and "illegal monopoly".
How can the system allow IBM and MS to collude in telling netbook builder how to build there machines [read below tech standards to use Winders].
What a sad case this county is.
The relevant passage:
"Custom XML" refers to content within the file that is of a different XML format, with a separate "custom schema" to describe that content. The problem with such content is that there is no way for a standard to describe how such data should be interpreted, as it is by definition in a "custom format" and can be any kind of data. That is why "custom XML" is not allowed in ODF documents, and that is one of the reasons why OOXML is such a miserable standard.
And this
Interesting, no? There's one more headline, but only to debunk, Matt Asay's Microsoft's 'Custom XML' patent suit could put ODF at risk. Actually, it doesn't, so far as I know. Custom XML was one of the reasons ODF folks thought the OOXML "standard" was crudely designed, and that it had no place in a standard. It was a big discussion, and basically, to the extent I understood it, the issue was this: that it was a short cut on Microsoft's part, so it wouldn't have to do things in the usual standard way but could just keep things as they were, dumping a lot of processing stuff into the format, where, ODF folks said, it didn't belong. The very name should tell you why.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
where can I buy this windows you say for 40$?
Setting aside the whole debate over patent trolls, it seems to me that Microsoft hired a particularly incompetant lawyer. This sounds more like misconduct and I'm surprised that the lawyer isn't subject to personal sanctions.
Make sure you get plenty of sleep before going to court.
Clifton Williams didn't and he's been sentenced to six months in jail for yawning.
"I was flabbergasted because I didn't realize a judge could do that," Williams' father, Clifton Williams Sr., told the Chicago Tribune. "It seems to me like a yawn is an involuntary action."
Williams, 33, attended his cousin's July hearing at Will County Courthouse in Joliet. His cousin, Jason Mayfield, pled guilty to a felony drug charge. As the judge sentenced Mayfield to two years probation, Williams let out a yawn, an involuntary faux pas in such a formal setting.
Circuit Judge Daniel Rozak thought the yawn was criminal and sentenced Williams to six months in jail, the maximum penalty for contempt of court without a jury trial. Rozak's order said that Williams "raised his hands while at the same time making a loud yawning sound," causing a disrespectful interruption in court.
So in a strange turn of events Mayfield, the felon, will be able to walk freely, while Williams, the yawner, will have to spend at least three weeks behind bars for his offending yawn. But it's not out of character for Rozak.
Contempt of court charges are typically issued when a judge feels someone is challenging or ignoring the court's authority, e.g., yelling at a judge, ignoring subpoenas, appearing in court drunk, etc.
But Rozak runs a tight ship. He has charged people who cuss in reaction to a sentencing and even jailed spectators whose cell phones interrupt proceedings. In fact, the Chicago Tribune found that Rozak has sentenced more spectators to jail for infractions involving cell phones than any other judge in Will County in the last decade.
Of the 30 judges in the 12th Judicial Circuit, Rozak has brought more than a third of all the contempt charges in the last 10 years.
"This is ridiculous -- you've got all these people shooting up kids, and here this boy yawns in court [and gets 6 months]. It's crazy," said Williams' 79-year-old grandmother.
UPDATE -- he was released from 3 weeks. Yes, Three weeks in jail for yawning in court.
Do you even lift?
These aren't the 'roids you're looking for.
I don't know a lot about the intricacies of the legal system, but why is the client penalized for the behavior or mistakes of the attorney? Does the client dictate or approve every word that comes out of the attorneys mouth in court? If the attorney used misleading wording then shouldn't the attorney be censured or fined and not have that penalty included in the actual judgment?
Maybe this isn't applicable at all, but what if an attorney represented someone guilty of committing a crime, and the judge tacked a few extra years onto the sentence because he didn't like the attorney or what they said?
Better known as 318230.
The judge is pissed off that his district is switching from WordPerfect to Word.
I don't have points to mod you up, but the judges do need to have their heads and their asses examined.
In this case, I completely disagree.
Microsoft made the argument that a company having a patent but not producing anything shouldn't be able to ask for monetary damages. That is wrong. I can make an invention even though I know clearly that I don't have the money, talent and intention to turn this into a product that can be sold at profit. If I am better at inventing than at marketing it would be ideal to invent things and sell those inventions to others who are better at marketing. The fact that Microsoft uses the invention proves that it is worth money and that damages should be paid.
This is of course completely independent of the question whether the patent should be invalidated, or whether Microsoft is infringing on the patent. It is quite possible that a court outside Texas would have judged in favor of Microsoft, and stupid software patents should be (but are not) invalid, whether they are owned by Microsoft or used to extract money from Microsoft. But that wasn't what the judge complained about: He complained that Microsoft repeatedly told the jury to not award damages for reasons that were not in agreement with the law.
And since they tried to influence a court decision that was about $200 million, making them pay 20 percent for trying to convince the jury to do something that is clearly wrong seems fine.
Get a hardware vendor's license and I bet you can get them cheaper than that.
Dag nabbit, stop feeding the patent trolls! they'll just breed...
[...]but the judges do need to have their heads and their asses examined.
Do they have to pull one outside of the other for examination?
Speaking of which, I wonder if any judge is going to fine the RIAA $40 million for comparing the defendant in a copyright infringement case to a seafaring marauder who terrorizes travelers and disrupts trade.
Sounds more like this judge is a jerk more than anything. I bet rolling your eyes would result in a year of jail with this judge presiding.
Ahh, if only Microsoft would get a penny for every time it's hit with a $40M fine for trial misconduct...
Contempt of court charges are typically issued when a judge feels someone is challenging or ignoring the court's authority,
you'd think that bringing the judicial system into disrepute would be grounds for a contempt charge - he should sentence himself to 6 months immediately!
We lose.
Hmmm?
CLEARLY lawyers not only DO NOT get punished, but are REWARDED for behaving in this manner.
The good guys (that would be us the humans, as well as the named other parties in the cases) all lose, and the unethical lawyers win.
Cheers,
Ehud
OK, I've sat in front of a judge and had a sentence dictated to me. Unless the defendant is used to this sort of thing, really couldn't care less, currently on some pretty serious drugs, or trying to be a dick... I can't believe that they could be capable of involuntarily yawning at that particular point in time. But, in all fairness, maybe that's not the case for everyone.
oo
Microsoft has, once again, tried to treat the courts with disdain, In this case in "Persuing a line of argument that the court has rejected", now its counsel have the right to object, and ensure that the court's ruling is manifest in the transcript for an appeal but they must stop flogging a dead horse when told to otherwise they, and their client face scanctions, and in this case got them!
Given Microsoft's record of persistent misconduct in litigation, eg lying at the Anti-Tust trial, contempt in EU proceedings I am amazed that their senior people have avoided jail time.
If an ordinary litigant had tried blatant perjury they would be in Levenworth.
Can any law-talking folk explain how the $290 million figure is derived? And if the state of Texas collects tax on this award? Not being conspiratorial, I really don't know much about the follow-the-money aspect of these cases.
At Dell when you buy a computer.
Here be signatures
"what if an attorney represented someone guilty of committing a crime, and the judge tacked a few extra years onto the sentence because he didn't like the attorney or what they said?"
If the lawyer wilfully lied to the Court, then the Judge is fully entitled to issue a fine, for contempt of court.
Lawyers always win, that is a law of nature.
You may not like it, the same as you may not like gravity, but both are there to stay.
Accept them.
I'm checking the document in PACER now. The $40 million was awarded for willful infringement, and trial misconduct was only one of many factors supporting the decision to enhance damages, though not to the fullest extent allowed.
i4i's MOTION FOR JUDGMENT ON THE JURY VERDICT AND ENHANCED DAMAGES ." Modine Mfg. Co. v. Allen Group, Inc., 917 F.2d 538, 543 (Fed. Cir. 1990).
As stated above, the jury found that Microsoft willfully infringed the '449 patent. i4i now
moves for judgment on the jury verdict and for enhanced damages and attorneys' fees in accordance
with the jury finding. A court may in its discretion enhance damages up to three times when there
is a finding of willful infringement or bad-faith on the part of an infringing party. 35 U.S.C. 284;
see SRI Int'l, Inc. v. Advanced Techs. Labs., Inc., 127 F.3d 1462, 1468-69 (Fed. Cir. 1997). "Bad
faith" in this context refers to an infringer's lack of due care with regard to avoiding infringement
and is more properly called "bad faith infringement." Jurgens v. CBK, Ltd., 80 F.3d 1566, 1571
(Fed. Cir. 1996). Although "bad faith" acts such as litigation misconduct are not sufficient alone to
support an enhancement of damages, assuming the requisite culpability is present, such acts can be
considered in determining whether to award enhanced damages and how much to award. See id. at
1570-71. A finding of willful infringement provides sufficient culpability to justify the enhancement
of damages under 284. See id. at 1571, 1573.
Enhanced damages are a punitive measure taken by a court to penalize a willful infringer for
his or her increased culpability. See id. at 1570. However, a court can refrain from awarding
enhanced damages in light of a finding of willfulness based on the weight of the evidence supporting
willfulness and the closeness of the issues at trial. See Brooktree Corp. v. Advanced Micro-Devices,
Inc., 977 F.2d 1555, 1582 (Fed. Cir. 1992); Laitram Corp. v. NEC Corp., 115 F.3d 947, 955 (Fed.
Cir. 1997). "The paramount determination in deciding enhancement and the amount thereof is the
39
egregiousness of the defendants' conduct based on all the facts and circumstances." Read Corp. v.
Portec, Inc., 970 F.2d 816, 826 (Fed. Cir. 1992), abrogated on other grounds by Markman v.
Westview Instruments, Inc., 52 F.3d 967, 975 (Fed. Cir. 1995) (en banc). Factors courts consider in
deciding whether to enhance damages and the amount of enhancement include: (1) whether the
infringer deliberately copied the ideas or design of another; (2) whether the infringer, when he knew
of the other's patent protection, investigated the scope of the patent and formed a good-faith belief
that it was invalid or that it was not infringed; (3) the infringer's behavior as a party to the litigation;
(4) the defendant's size and financial condition; (5) closeness of the case; (6) duration of the
defendant's misconduct; (7) remedial action by the defendant; (8) the defendant's motivation for
harm; (9) whether the defendant attempted to conceal its misconduct. Id. at 827.
In addition, attorneys' fees and costs may be awarded in "exceptional cases" to the
"prevailing party." 35 U.S.C. 285. i4i argues that an award of fees and costs are appropriate
because of a finding of willfulness alone. However, "exceptional cases" may, but are not required
to, include the jury's finding of willfulness. Insituform Techs., Inc. v. Cat Contracting, Inc., 518 F.
Supp. 2d 876, 895 (S.D. Tex. 2007) (citing Avia Group Int'l, Inc. v. L.A. Gear Ca., Inc., 853 F.2d
1557, 1567 (Fed. Cir. 1988)). "The decision to increase damages is committed to the discretion of
the trial judge . . .
However, in cases where there has been an express finding of willfulness, the trial court must, in
denying attorneys' fees, "explain why the case is not 'exceptional' within the meaning of 35 U.S.C.
Section 285." Id.
The evidence at trial established that Microsoft was aware that i4i had obtain
No, they just use the 8th amendment.
Give me Classic Slashdot or give me death!
Sounds to me like a bunch of politicians with their hands out looking to take advantage. I understand that the fines should usually be calculated based on losses incurred by the "victim" but some of these figures I think they just pull out of their ass because somebody is whispering in the judges ear. In hard economic times the government and the legal system seem to be trying to harvest the money tree, but take advantage of those who are still making it.
You're hiring them to represent you.
If the transcripts have proven anything since the TARP was initiated, it's that the majority of banks didn't want the TARP money, and that the Fed and the government practically forced it down their throats. As a result of TARP, many of the banks had to take the money and pay the government a material (i.e. large) amount of interest, dividends, and warrants.
The only institutions which needed and wanted the TARP funds are AIG and C. The rest wish they could have not been forced to take it.
not in front of the beak.
Where ODF keeps the tags in.
Therefore the patent (how to remove the XML tags whilst keeping the tags and content linked) is not needed or wanted in ODF.
Just the way MS wants to keep with the memory dump and drop XML "tags" around the dump because that's cheaper for their program to do than do XML document PROPERLY.
Why in hell did the judge not censure the blasted idiot that kept making improper arguments? Hell he could have held him in contempt of court along with censuring him, which would keep the idiot out of his court room in the future.
But this isn't the defendant being slapped with the contempt charges, it's his cousin.
I knew this reminded me of something: new movie AVP2 Alien Vs Predator, the beginning. //so thats how it all started...now I understand.//
"Computers are a lot like Air Conditioners" "They both work great until you start opening Windows"
Ah. I should read more carefully. Thanks for pointing that out.
oo
Comment removed based on user account deletion
>>> non-practicing patent owner == patent troll
True
DNA in your Linux: DNALinux
Rest assured. If you infringe on a Microsoft patent, they'll be very active at making your life miserable.
Inventor, Artist http://www.Rubber-Power.com
This is certainly not new behavior for Microsoft. They did some similar things which resulted in special damages in the amount of $25 million to a company called Z4 Technologies.
Z4 was a company that had a patent on online activation and validation of software products. As you all know Windows and Office have this same feature. Autocad does as well.
Z4 approached Microsoft and informed them that they held the patent and wanted to make arrangements with Microsoft to license it. Microsoft ignored Z4's attempts at contact. Z4 persisted and finally hired a lawyer to take the case.
During the trial Microsoft buried the court and Z4 in paperwork. One would think this is acceptable behavior, but it is not. There were also other instances of bad behavior.
The night before the trial was to begin Z4 found, in the mound of paperwork, the documents that proved that Microsoft knew they were in violation of the patent. According to the record the judge noted that Microsoft had simply ignored Z4 because they felt Z4 was to small to protect their own property.
The award was for Z4 in the amount of $100 million dollars. On top of that the judge awarded Z4 an additional $25 million in special damages.
When you think about it it really boils down to this: Microsoft was found guilty of stealing the IP which as used to keep *you* from stealing their IP. Then when called on the matter they ignored the IP owner's attempts to license and then participated in numerous acts of misconduct.
Microsoft appealed and lost. They appealed again and lost. The final appeal resulted in the judge stating that the acts of misconduct that were disputed were only a portion of the actual acts of misconduct. The judge stated there were so many that they weren't even all written up in the judgement.
Autocad was sued as well, but they were not cited for any acts of misconduct.
So, you have the world's richest company, the once richest man, a criminally convicted monopolist, trying to destroy a small company that held a patent which Microsoft seems to have stolen to keep you from stealing their property. This is a company you should seriously question the ethics and morals.
You can lead a man with reason but you can't make him think.
In Microsoft's view, every patent they hold is valid while every patent held by anyone else is invalid.
And it is likely that a court in some other jurisdiction would have held in i4i favor just as well.
What others and maybe you are saying is that you can't trust the Texas courts.
You can lead a man with reason but you can't make him think.
Not always. See Jack Thompson.