Judge denies MS attempt to re-define ‘card’

A US District Court has agreed that the word 'card' means any 'flat, rectangular piece of stiff material', paving the way for intellectual property company E-Pass to pursue its claim that HP iPaqs running Microsoft software violate its patent for a "multi-function card".

Register readers may be more familiar with E-Pass' other action, against PalmOne. The legal tussle with Microsoft and HP - technically, against Compaq; the suite was filed before the merger - is a parallel one.

E-Pass claims the Microsoft's Pocket PC operating system violates patent number 5,276,311, which it administers on behalf of the inventor, Hartmut Hennige. The so-called '311 patent' essentially describes an electronic wallet used to hold credit card details securely on said multi-function card.

Like PalmOne before it - again, technically 3Com, since that suit was filed before the Palm IPO and the subsequent split into PalmOne and PalmSource - Microsoft argued that the word 'card' implied a specific range of sizes. And since Pocket PCs don't come in those sizes, such devices could not to be held to infringe the 311 patent.

The US District Court of Northern California sided with Palm and ruled that its devices did not infringe E-Pass' intellectual property. E-Pass appealed and last August won that appeal. Court of Appeals judge, Senior Judge D. Lowell Jensen, ruled that the word 'card' means any 'flat, rectangular piece of stiff material' and told the District Court to reconsider whether PalmOne's PDA infringe the 311 patent on that basis.

That case continues. In the meantime, Judge Kenneth Hoyt in the US District Court for the Southern District of Texas in Houston this week ruled that the appeals court ruling was correct. He also ruled that a number of other elements of the language used by E-Pass in the construction of the claims that make up the 311 patent to which Microsoft's legal team had objected should be allowed to stand when it comes to determining whether infringement has taken place.

That aspect of the case has still to be judged, and Judge Hoyt's ruling essentially aligns the Microsoft/HP case with the PalmOne action. However, by accepting E-Pass' broader definitions and not the tighter, more specific meanings the defendants' lawyers had requested, the ruling does make it more difficult to show there has been no infringement.

Equally, however, it makes it easier for Microsoft and HP to show Prior Art and so ask that the 311 patent be ruled invalid. The ruling allows the patent to be compared to a wider range of devices, many of which were available before the patent was filed, in 1994.

E-Pass is separately suing Visa, for allegedly infringing the same patent. E-Pass claims Visa met the company in 2000. After the meeting, it never heard from Visa again, until it spotted Visa's then VP for Product Development, Susan Gordon-Lathrop, appear with then Palm CEO Carl Yankowski to demo a Palm storing secure credit card details.

All three cases continue. ®

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