Eolas, Microsoft make their case--again

(continued from previous page)

erred in including Microsoft's foreign sales in determining damages for infringement on a domestic patent.

Should the appeals court uphold the lower court on the first two of Microsoft's arguments, a victory for the software giant on this third point would slash its damages to between $100 million and $200 million, according to the company.

The issue of considering foreign sales in U.S. patent infringement awards has seen significant attention by the courts since the district court handed down its ruling. Most agree that Microsoft's position will benefit from both a recent ruling and the track records of the three judges assigned to hear the appeal.

"Folks in Washington clearly must be smiling based upon having dodged a bullet on panel composition."

--Hal Wegner, attorney,
Foley & Lardner

Eolas and UC "face an uphill battle," Hal Wegner, a Foley & Lardner attorney and George Washington University Law School adjunct professor, wrote in a recent note on "Patent Infringement Extraterritoriality." He added: "Folks in Washington clearly must be smiling based upon having dodged a bullet on panel composition."

The precedent that may have Microsoft's lawyers smiling is Pellegrini v. Analog Devices, a July decision in which the court of appeals ruled that in order for offshore distribution of American products to be subject to domestic patents, components of the products in question have to be physically present in the United States and then shipped overseas.

The court is unlikely to apply that description to Microsoft's distribution of Windows and Internet Explorer, according to Wegner. That's because Microsoft ships a so-called golden master copy of the software to its overseas offices and produces the product there by making copies from it.

A second decision on extraterritoriality, NTP Inc. v. Research in Motion Ltd., could be handed down at any time by the federal circuit.

The three-judge panel selected to hear Microsoft's appeal will be presided over by Judge Randall Rader--an appointee of former president George Bush--who not only joined the Pellegrini opinion but served the U.S. Senate as counsel for the Subcommittee on the Constitution and the Subcommittee on Patents, Trademarks and Copyrights while the extraterritoriality law invoked in Pellegrini was drafted.

Another judge on the panel, Judge S. Jay Plager, has joined Rader on other decisions that limited the applicability and reach of U.S. patents. The third judge, Judge Daniel Friedman, also has ruled strictly on patent cases.

ie8 fix

What's Hot

Discussions

Shared

1. Meet the tireless entrepreneur who squatted at AOL
2. Here comes Yahoo's own Web browser -- Axis
3. Apple's next invention: The iPen?
4. FBI quietly forms secretive Net-surveillance unit
5. Hewlett-Packard just whacked the wrong executive
6. Get a five-port HDMI switch for $19.99

1. Browser choice: A thing of the past?

   104 comments

2. Here comes Yahoo's own Web browser -- Axis

   98 comments

3. Why Apple needs to settle its e-book suits

   91 comments

4. FBI quietly forms secretive Net-surveillance unit

   90 comments

5. Facebook, Zuckerberg sued over IPO

   85 comments

RSS Feeds

Add headlines from CNET News to your homepage or feedreader.

• RSS

  Subscribe

• my Yahoo

  Add this Feed

• Google

  Add this Feed

• MSN

  Add this Feed

ie8 fix