Federal Circuit Upholds Patent Infringement Ruling Against Microsoft

The Federal Circuit on Tuesday affirmed [.pdf] a lower court ruling that ordered Microsoft to stop selling its ubiquitous Word program and fined the company $290 million.  A Texas jury previously found that Microsoft’s Word 2007 infringed a software patent held by a Toronto-based technology company, i4i Inc.  Following that jury verdict, U.S. District Judge Leonard Davis issued a permanent injunction that prohibited Microsoft from selling the 2003 and 2007 versions of Word, and also ordered the company to pay more than $290 million in penalties.

The infringing versions of Word employ a technology called “Custom XML,” which lets users edit XML, the programming language that controls the way programs interpret and display the contents of a document.

In a statement, Microsoft said that it has been developing modified versions of Word 2007 that do not use the Custom XML feature.  Microsoft claims that these modified versions will be ready for sale by January 11, 2010, the date on which the permanent injunction takes effect.  Microsoft also noted that it is considering further legal options, “which could include a request for a rehearing by the Federal Circuit Court of Appeals en banc or a request for a writ of certiorari from the U.S. Supreme Court.”

The court noted that its decision did not impact copies of Word 2007 sold before the injunction takes effect, so Microsoft can continue to provide technical support with respect to those versions.

Summary judgment granted to Apple in case against maker of Mac clones

On November 13, U.S. District Judge William Alsup (N.D. Cal) granted summary judgment to Apple in its copyright infringement case against Psystar.  As background, Psystar offers non-Apple machines for sale to the public that come pre-installed with Apple’s Mac OS X operating system.  Psystar developed a work-around of Apple’s Mac OS X protection measures to run the operating system on their own machines, thus enabling customers to get the inner workings of a Mac without any of the burden of paying for Apple’s R&D or award-winning industrial design.

Judge Alsup rejected all of Psystar’s arguments, including under the first sale doctrine, holding that the doctrine only applies to legal copies, not the unauthorized copies that Psystar had made.  Apple also won its claim under the DMCA, with the judge holding that Psystar had violated the DMCA by circumventing Apple’s protective measures to prevent it from being installed on non-Mac machines.  The case does provide a few practice tips for aspiring attorneys.  If you are going to rely on a fair use defense, you may want to actually run through the ubiquitous four factors, as apparently Psystar was too busy to do so in their own brief and got slapped down by the judge.

With victory in hand, Apple has now moved on to the remedy; seeking a permanent injunction, which would prohibit Psystar from selling any machine that is pre-loaded with Apple’s operating system.  Apple is also asking for $2.1 million in statutory damages.  While this case was a seemingly easy win for Apple based upon these facts, a harder case may be yet to come from those in “hackintosh” industry that simply offer software that enables legitimate buyers of Mac OS X to install it on their own non-Apple machine, rather than actually pre-installing and distributing non-Apple machines containing Apple software. Apple would heavily rely on its EULA which prohibits customers from installing its OS X operating system on non-Apple computers.

Law Hacks

The ABA Journal online published a list of “law hacks” this past summer. They group these “hacks” under E-mail, Your PC, Time Management, Phones, the Web, Software, Low Tech, Your Brain, Your Money, Hardware, and more. (If you’re unfamiliar with the world of “hacks” or more properly “life hacks,” then they’re generally tidbits of advice to streamline your productivity. See Lifehacker for your daily dose.)

It’s pretty much a list scarfed from Lifehacker posts over the years. Only a few of them cater specifically to legal work. But nonetheless it’s a decent summary for people who are too busy to read through Lifehacker archives.

Instead of merely criticizing, here’s me putting my money where my mouth is and starting my own list of law hacks, some replicative of the ABA, others not. (You can read a snippet of my criticisms at the end of the list.)

1. Google Desktop Search (“GDS”) (or Spotlight in Mac OS). This is essential. Whenever I use a case, I save the PDF version in a folder for each client/project. And I allow GDS to catalog the contents. Then if I know I ran across a case about something, I don’t have to dig around—all I do is search. It’s that easy.
2. Name your files usefully. So I have a folder for every client/project. But files often float around independently. If I have a motion to dismiss document for client Smith, then it doesn’t help if the filename is “mot dismiss.doc,” especially if I e-mail it to someone or to myself to work on remotely. Name it usefully. I’ll use “Smith.MtD pers juris.111707.doc.” I won’t even explain what my abbreviations are for. It should be that easy.
3. Add short descriptions to case filenames. Even with GDS, sometimes you do find yourself digging around in folders and files looking for cases. When you’re reading cases, you’re usually looking for one main point of law from each one. So when you read through a case, name the file with the point it’s useful for. For example, “Smith v. Kim (1st Cir. 1992) neg op turn signals.pdf.”
4. Use a wiki or blog as a to-do list and notepad. I use a wiki to keep a running to-do list of short- and long-term tasks. I also have a list of “notepads” linked from the home page of long-term projects or just places to jot down important numbers and passwords, etc. Blogs are sometimes better for to-do lists because every day is a new to-do list and you can track your progress (or lack thereof) by replicating your existing to-do list every day. And keep them password-protected for security.
5. Use del.icio.us (or another bookmark manager). Organize and store all your bookmarks remotely so you can access them from any computer. Check out my bookmarks on rules: http://del.icio.us/pham/rules. Enough said.
6. Keep track of your time daily. Each summer, I had a small notebook for my to-do list that I would check off of and re-create at the end of each day—planning the next day’s work. I would have another small notebook where I’d write down the current project name, the time I started, and the time I stopped. Then at the end of the day or first thing the next day, I’d enter my time. I actually “experimented” by trying to account for time at the end of a week—it was impossible. And I didn’t feel right “fudging” the time, and in the end I’m sure I lost minutes which added up to hours, etc.
7. Use paper wisely—print double-sided and purge or re-use paper. It takes a few seconds to set your default printer to print double-sided. It just makes sense to do it. You’ll cut your paper usage approximately in half. I also think it’s easier to read; it’s more natural, like reading a book. Then, when you’re done with a project, purge as much paper as you can. Get it out of your office and into the recycling bin. Also, if you have to print on one-side, re-use it as scrap paper, put a staple into it and use it as a notebook, or take it home and use it in your inkjet. If you hand-write important annotations on cases, consider using something like Skim (Mac OS) to electronically annotate PDFs.
8. Keep your inbox slim. I talk about this below. You don’t need to empty your inbox every day; just keep it slim. It’s satisfying—or at least not overwhelming—to have a slim inbox. It doesn’t take much. When you get an e-mail, read it immediately and then file it away. If something needs to be taken care of, take care of it ASAP. If you can’t, then keep it in your inbox until you can, but make sure you get to it.
9. Practice voice mail etiquette—keep your greeting short, leave informative messages, use e-mail, text, or IM. Voice mail greetings don’t have to say much—hey, know you’re number, that’s why they’re calling you. “You’re reached [name]. Please leave a message.” And then when you’re leaving a message, don’t just say, “Call me back.” Tell me why. Compel me. Otherwise, you’ve wasted everybody’s time. Or just e-mail me or IM me. Voice mails are passive communications (just like e-mail or IM) that I can’t skim, that I have to work to get to.
10. Use IM. I think IM can be so useful in a work environment. It’s a quick, passive, unobtrusive way to get in touch with people. There’s also the fantastically helpful status message—you can, at a glance, tell if the person is available or not, and if they have informative statuses, what they’re up. (For example: “out to lunch until 1:30,” “working on Smith case,” “anyone know anything about suing a cop,” “afk” (away from keyboard), “working from home,” etc.) And if you use IM for work, don’t use your “BCEaglesROXNUMoneShoRTy” screen name from your foolish youth. Create a just-for-work screen name that’s professional and descriptive, like “johnsmithatXYZ.” And don’t give it out to your friends.

I don’t quite agree with the e-mail tips. I tend to think that you should keep your inbox small, but it doesn’t need to be cleared every day. My inbox is more of my mid- to long-term to-do list. Anything short-term I read and then archive or accomplish and then archive. Generally, I think once you file an e-mail away, it disappears unless you search for it. So if it’s not addressed or done, it can’t get filed away. But to keep your inbox slim, you have to address e-mails which gives you a satisfying incentive to get things done quick.

The PC hacks are a bit too technical. Plus, the recommendation of Quicksilver–which I use and love and couldn’t live without–is Mac-specific. (Launchy is the not-up-to-snuff PC variant.) But I’m totally on-board with the Google Desktop Search–or just Spotlight on the Mac OS–to search through documents, especially PDF files of cases.

Proofreader in iWork Pages ‘08

I’ve decided to give the Apple iWork Pages ‘08 a fair shake in the word processor wars. It’s taking me a bit to get used to it. But my first impression of the cleanliness of the interface and the way it aesthetically “fits in” with the Mac environment assisted my persistence with the new world. (The biggest thing, immediately, was that it “knew” how to size the page and text to my 12″ Powerbook screen. Word always felt a bit uncomfortable: Was the page screen in the middle of the screen or to the left? Normal view or Page view? Zoom at 115% or 135%? Things like that.)

Let’s start by saying that it’s been about a month, and I’m still using it in lieu of Microsoft Word.

There’s no default font setting in Pages. So if you want all your documents to *not* use Helvetica 12-pt, then you have to create a new “Blank” template. (My font is Georgia 11-pt, for the record.) I can handle that.

You create shortcut keys for special characters in the Preferences… menu option. For example, in Word I’d map option-6 to the “section” symbol; option-shift-p to the “pi” symbol for “plaintiff,” etc. In Pages, I map things differently. Instead of key combinations, I use typed macros: “-s” for section, -pp for pi. Fine.

What kills me is that two dashes doesn’t auto-correct to an em-dash without a trailing space in Pages. (“Dash dash space” instead of just “dash dash.”) And when I insert mathematical symbols, the leading gets screwed up. And the bullet schemes are weird; I like the Word filled bullet on level one, then hollow bullet on level two. And their nice thick bullets, not the anemic ones that Pages uses.

But there are smart things in Pages. (Like the many more smart things in Numbers, the Excel rival.) I just tried a spell-check. In Pages, it’s called Proofread. And you know what it proofread for me? It told me that “prior to” is too wordy, and I should just use “before.” Ah, proofreading only a lawyer can love! And then it told me that I should limit my usage of the word “input” to computer and other technical uses. Kind of groovy, if you ask me. It’s the touch of an actual editor and proofreader, and not just some linguistically brute-force algorithm that makes vague suggestions insulting your style a la Word.

And so I’ll continue to plug away with Pages. Hopefully I don’t get stuck with Betamax on this one.