On September 23 the Court of Appeals for the Federal Circuit is going to hear Microsoft's expedited appeal for a stay of the Texas decision ordering Word and Office off the U.S. market by October 10 because they allegedly infringe an i4i patent.

Microsoft got the date the day after it asked for it last week and Dell and HP are going to file amicus briefs in support of Microsoft's position that the injunction will have serious economic ramifications and that their business will be hurt.

Microsoft also filed its 101-page appeal of the whole decision. It wants the stay until the appeal is heard and that could take a while.

The appeal faults the Texas court's application of the law, accusing it of abdicating its "gatekeeping function" - "even the semblance of gatekeeping" - allowing the trial to "run amok" and failing to "prevent a miscarriage of justice."

It claims the judge ignored evidence, let the jury consider an infringement theory that contradicts the i4i patent's claims, specifications and "very title," accepted "manipulated surveys of infringing use" to reach the "outrageous" royalty of $200 million i4i demanded and - to cap it all - was persuaded by the inventor of the i4i patent Michel Vulpe, who validated his patent - unsupported by any corroborating evidence - with the testimony that he lied to investors (including the Canadian government) about the date of its conception, pushing it back a year past the point it appears he had already sold it.

Microsoft is dependent on the testimony of one of Vulpe's former colleagues for its alleged timetable since Vulpe destroyed the original code.

Microsoft, who says nothing about this soap opera being under seal that last couple of years, complains about being slapped with a $40 million penalty in enhanced damages in part because the judge in Texas didn't like Microsoft's lawyer comparing i4i to a bank seeking a bailout by bringing a "baseless lawsuit simply in an attempt to achieve liquidity." Microsoft claims its argument was "undeniably appropriate."

Unless it gets the decision quashed it'll cost Microsoft an additional $144,060 a day until a final judgment is reached on top of the $290 million it's been ordered to fork over to the little Canadian company.

i4i says it's confident it will eventually prevail but Microsoft maintains that it doesn't trespass and that the i4i patent isn't valid anyway.

Microsoft's appeal and its emergency motion last week say that the Patent and Trademark Office provisionally threw the i4i patent out pending re-examination after being pointed to the SGML editors Rita and DeRose, prior art it didn't know about.

In an e-mail to this publication Dr Steven DeRose said, "I've read the '449 [i4i] patent, and he's describing almost exactly the same thing as part of what my company was doing years earlier."

Microsoft reasons in its motion that the validity of the patent should be determined before it's forced to change Word, a cost that will be passed on to the consumer. It also claims that it would take months to excise the offending code if it has to.

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