Dell, HP comes to Microsoft’s rescue on Word injunction

Gregg Keizer

15 years ago

Dell Inc. and Hewlett-Packard Co., the world’s two largest computer makers, have sided with Microsoft in its appeal of a ban that would block Word sales in the U.S.

Like Microsoft, the two companies warned that the injunction would ripple through the PC ecosystem, and they said that without more time to test any Microsoft tweaks, users might lose data.

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Dell and HP filed nearly identical amicus curiae, or “friend of the court,” briefs earlier this week with the Court of Appeals for the Federal Circuit, which is considering Microsoft’s request to overturn a Texas court’s verdict and quash the injunction that prohibits Microsoft from selling current versions of Word 2003 and Word 2007 after Oct. 10.

Both companies asked the three-judge panel to block the injunction or, failing that, to extend the deadline by four months. “At a minimum, should the injunction be affirmed following the Court’s scheduled hearing on Sept. 23, 2009, Hewlett-Packard respectfully requests that the injunction not take effect until 120 days after this Court’s decision,” HP’s brief read.

Microsoft can likely sidestep the injunction with an “easy technical workaround,” Barry Negrin, a partner with the New York firm Pryor Cashman LLP said early last month.

However, the computer manufacturers said that if Microsoft were forced to modify Word 2003 and Word 2007 to comply with the injunction, they would likewise be required to change the software they factory-install on their new PCs. Many new computers, for example, come with Microsoft’s Office or a trial version of the productivity suite.

“If Microsoft is required to ship a revised version of Word in Dell’s computers, the change would need to be made to Dell’s [disk] images,” the Round Rock, Texas-based PC vendor’s lawyers said, referring to the disk images used by computer makers to prep new PCs’ hard drives. “Making such a change would require extensive time- and resource-consuming retesting.”

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Dell and HP have waded into a case that’s more than two years old. In 2007, Toronto, Ontario-based software developer i4i Inc. charged Microsoft with infringing on its patent for creating custom XML documents. Last May, a federal jury in Texas found Microsoft guilty and awarded it $200 million in damages. Two weeks ago, U.S. District Court Judge Leonard Davis, who oversaw the case, tacked on another $90 million in damages and interest and blocked Microsoft from selling Word in its current form.

The salient point for Dell and HP is the injunction Davis slapped on Microsoft.

The two companies told the judges that because the ban would not only harm their sales, but also affect the public, the injunction should be set aside. “The District Court’s injunction thus will impose heavy burdens on Dell, and will also adversely impact the public interest,” said Dell’s brief. “The court should consider these factors in weighing the equities relevant to Microsoft’s motion to stay the injunction.”

Microsoft made a similar argument last week when it filed its motion for a stay of the injunction. At that time, Microsoft warned of “massive disruptions” to its sales of Office, as well as to the sales of important partners, and named both Dell and HP.

Dell and HP added their voices to the chorus of implied chaos. “The District Court’s injunction of Microsoft Word will have an impact far beyond Microsoft. Microsoft Word is ubiquitous among word processing software and is included on [redacted] computers sold by Hewlett-Packard.”

The public versions of both briefs were heavily redacted. Dell and HP said that the deleted material included descriptions of the “contractual provisions governing software changes between Dell, [Hewlett-Packard] and Microsoft.”

A Dell spokesman and an HP spokeswoman declined to comment further for their companies, with the latter citing company policy not to comment on pending litigation.

A source familiar with the amicus curiae briefs, however, hinted that it would be difficult if not impossible for Dell and HP to meet the October deadline. The companies first must receive new code from Microsoft, test the resulting disk images before using them to format new PCs’ hard drives and then get those systems into the sales channels and pull out existing PCs that are equipped with current versions of Word.

“The 120 days should be a sufficient window” to do all of that, said the source, who asked not to be identified. The possibility exists that Dell and HP would have to pull Office from their PCs, the source acknowledged.

For its part, Microsoft said during the May trial that it would take at least five months to work up a Word version that omitted the offending custom XML feature. However, i4i countered by claiming that a fix could be produced much faster than that.

An oral hearing on Microsoft’s appeal is scheduled for Sept. 23, after i4i files its response and Microsoft is given a last chance to rebut.