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With its weekend announcement that Microsoft has settled a second big piece of local litigation, it may appear the company is trying to clear its legal plate. But it’s just a coincidence, a company spokesman said. And some of Microsoft’s legal adversaries — it has 35 active patent suits alone — say they see no sign of softening. The deal was hammered out just as Microsoft was finalizing its nearly $2 billion settlement with Sun Microsystems Inc. The Sun pact was inked just before dawn April 2, and the InterTrust agreement was finalized the following day. The companies waited a week to make a public announcement. Despite the proximity of the transactions, Microsoft said they were unrelated. “Sometimes things come together that are on a completely separate track,” said Microsoft spokesman Jim Desler. On Monday, the companies detailed the terms of a deal in which Microsoft is to make a one-time payment of $440 million to license InterTrust’s technology that protects data transmitted over digital networks. “One of the key reasons we wanted to do this deal was to provide our customers with the assurance that they can use our digital rights management solution without any fear of potential legal issues,” said Desler. San Jose federal Judge Ronald Whyte had a ringside seat as Microsoft moved to settle one of its biggest patent suits. Oakland federal Judge Saundra Brown Armstrong told the parties to find a federal judge to oversee talks in July, after she had issued a Markman decision that defined the terms of InterTrust’s patent claim in its favor. Whyte volunteered. “We think it’s great,” said Jeff McDow, InterTrust’s senior vice president of intellectual property. “It’s a validation of the importance of our invention and our place in the industry.” Santa Clara’s InterTrust filed suit against Microsoft in April 2001 over what became 11 patents that cover ways of securing the transmission of data. The patents are “very central to everything Microsoft is doing,” said InterTrust’s lead outside counsel Michael Page, a partner at Keker & Van Nest. The patents are “at the core of [Microsoft's] media player and .Net” software that enables different devices to communicate with each other. Page said InterTrust’s in-house counsel, Douglas Derwin, was the main architect of the deal. The company’s negotiating team also included Chief Executive Officer Talal Shamoon and Chief Technology Officer David Maher. Eric Wesenberg and William Anthony Jr., partners at Orrick, Herrington & Sutcliffe, and John Vandenberg and James Geringer, partners at Portland’s Klarquist Sparkman, served as Microsoft’s outside counsel. The in-house Microsoft team that worked out the InterTrust deal also included Andy Culbert, the head of IP litigation; associate general counsel Bart Eppenauer; Brad Brunell, senior director of strategy for Windows clients; and Chief Technology Officer Craig Mundie. Anthony and Wesenberg credited Whyte for the final settlement. “Without him it probably wouldn’t have happened,” Wesenberg said. “It was unusual for Judge Armstrong to have a sitting judge” oversee settlement talks. Desler said that if there is a patent “we think has value, and it is in our interest and our customer’s interest to settle, we’ll do it.” But Desler said the company is no pushover. He said about 15 other patent suits filed against it have been dismissed by courts in the past three years. Last year a federal jury in Chicago found that Microsoft had infringed the University of California’s patent on Web browser technology and ordered the company to pay UC and its licensee, Eolas Technologies Inc., $520 million in damages. Microsoft won a victory, though, when the director of the U.S. Patent and Trademark Office ordered a re-examination of the patent. Martin Lueck, a partner at Minneapolis-based Robins, Kaplan, Miller & Ciresi who is representing the university, said he couldn’t comment on whether his client has discussed a settlement with Microsoft. But the software giant’s latest deal doesn’t portend a change in the Eolas battle. “I don’t look at it as having much of an effect on us,” he said.

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