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A $521 million patent infringement verdict against Microsoft Corp. — the largest of 2003 to date — may have been the result of what jurors didn’t hear, Microsoft lawyers say. The five-week trial centered around technology that allows an Internet user to access interactive Web pages through the user’s Web browser. The method provides “plug-ins” that can display interactive information like stock charts, video players and virtual real estate tours. Microsoft began using the technology in 1996 with the release of Internet Explorer 3. The plaintiffs, represented by Martin R. Lueck of Minneapolis’ Robins, Kaplan, Miller & Ciresi, filed suit in 1999 claiming patent infringement. They alleged that the technology was first discovered by a team of researchers at the University of California, San Francisco led by Michael Doyle. A patent was issued to the university in 1998 and later licensed to Eolas Technologies Inc., a Chicago-based software company founded by Doyle. Regents of the University of California v. Microsoft, No. 99-C626 (N.D. Ill. Aug. 11, 2003). A key argument of Microsoft’s defense was that “prior art” predated Doyle’s research. According to the parties, Judge James Zagel held a hearing, without the jury present, to determine the weight of Microsoft’s evidence of “prior art.” The judge then issued a ruling about a week before deliberations, saying that the jury would not be asked to consider that question. In trying to convince Zagel of the validity of its argument, Microsoft’s lawyers, David T. Pritikin and William H. Baumgartner of Chicago’s Sidley Austin Brown & Wood, along with in-house counsel, presented testimony that a program called Viola, invented by Pei Wei, had been publicly demonstrated before Doyle’s patent application was ever filed. Pritikin and Baumgartner documented a series of e-mail messages between Doyle and Wei that disputed which research came first. Microsoft also claimed that it had paid $10.6 million between 1994 and 1997 to license the Mosaic Browser, a helper application that it considered a prototype of Doyle’s patented application. “We believe very strongly that we were right on the law and on the facts,” said Microsoft associate general counsel Andrew Colbert. “The patent examiner never had a chance to weigh the application against this prior art. Once that prior art is considered, our position will be vindicated.” APPEAL IS LIKELY Zagel declined to let the question go to the jury. Microsoft lawyers will likely appeal the issue to the U.S. Court of Appeals for the Federal Circuit. They will also appeal a ruling that allowed the plaintiffs to seek damages on units of Windows with Internet Explorer produced and sold outside the United States. The jury’s verdict of $512 million represents $1.47 for each unit of Windows sold between November 1998 and September 2001 — approximately 354 million copies, including foreign sales. On damages, Microsoft had suggested a figure of $3 million to the jury, and the plaintiffs had suggested $1.2 billion. The question of foreign damages will be an important issue of first impression for the panel that hears the case at the Federal Circuit, says Hal Wegner, an expert on intellectual property in the Washington office of Foley & Lardner. Microsoft claims that foreign sales represented 68 percent of the jury’s verdict. Lueck, the plaintiff’s counsel, asserted that Doyle’s technology is used in “just about every application you can think of.” But the plaintiffs sued Microsoft because the patent specifically covers a browser program, and Microsoft controls the majority of the market share.

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