Microsoft's 2009 Uniloc patent victory overturned on appeal Microsoft did infringe a Uniloc patent designed to stop software piracy, a US appeals court ruled yesterday. However, the US Court of Appeals for the Federal Circuit found that Redmond's infringement was not wilful. It called for a new trial on damages and said the the original award of $388m dished out by a Providence, Rhode …
But not relevant. If you read the finding, you'll see that the case of non-willfulness was determined by analysis of the complexity of the process patented and the infringing process using a well-known (in patent legal circles) precedent.
Given that, Microsoft's prior record would have no effect on that finding.
Since that finding is the only one in favor of Microsoft, Microsoft's prior record is clearly unnecessary as evidence for the other findings.
Finally, Uniloc would have had to present Microsoft's record as evidence and apparently did not do so. I hardly think it's fair to blame a court for "ignoring" evidence which has not been presented to it.
US patent law gives the courts discretion to multiply an award of damages by up to three times, which is why wilful damages awards are so high. This sounds very generous to the holder of the infringed patent, but I wonder whether it really works to the successful plaintiff's benefit.
Where the cost of failure in litigation is so high, the temptation to appeal -- and to invest heavily in the appeal -- will increase, thus multiplying the expense of enforcement and delaying the outcome. Also, while it is relatively easy to assess whether a patent is infringed, it can be extremely difficult to assess whether the infringement was wilful or not. This can involve lengthy and time-consuming discovery of evidence, which must then be digested and rationalised into a plausible case that the infringement was wilful.
I wonder whether a better litigation strategy for the Unilocs of this world, when suing in the US and where the infringement is ongoing, is not to go for damages at all but press swiftly for an injunction as a means of leveraging a good stream of licence revenue.
Also, I don't know if there's any comparative data as between the US and Germany, but in Germany there is little scope for discovery and damages awards are most ungenerous by US standards, but the handling of infringement litigation is by general assent pretty good.
Where I worked in MS we were NOT ALLOWED to go doing searches on patents because that way we could not pick up the ideas deliberately so any infringement would by definition be an accident.
If you don't search for other peoples IP then you will find yourself duplicating ideas - both obvious and difficult ones, there are really only so many ways to solve particular problems.
I don't defend MS on this but at least the division I worked in did not go looking for ideas to copy, didn't do patent searches to see if anything we thought of was a copy of someone else and certainly didn't go trying to copy IP.
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