As of the writing of this article, Microsoft recently retook the title of most valuable company from Nvidia. In their decades-long rise, Microsoft has been the subject of copious litigation and regulatory scrutiny. Most notably, in the 1990s, the company faced extensive antitrust litigation over whether the company was monopolizing personal computer operating systems. At one point, regulators and the courts considered splitting up the company. However today, the company is as large as ever, including their recent acquisition of games giant Activision-Blizzard. The following analyses examine the litigation the company has faced since 2019.
Patent Litigation
Patent litigation, often brought by Non-Practicing Entities, makes up the largest share of Microsoft’s litigation. In district courts, Microsoft is the defendant more often than not; however, the company often goes on the offense by filing petitions for Inter Partes Review to the Patent Trial and Appeal Board.
As to the subjects of these patent disputes, the inventions covered from said patents range from server management code underpinning Azure, to back-end software that Skype relies on, to various hardware components of Surface Tablets, to virtual reality technology, various features of XBox series consoles, and beyond.
In terms of opponents, Microsoft has most often faced Uniloc 2017, LLC. In court filings, the company describes themselves as a Delaware corporation that holds all substantial rights, title and interest in and to the various patents over which they sue Microsoft, and others, for infringement. Since 2019, the LLC has sued Microsoft twelve times over patent infringement, and Microsoft has filed for Inter Partes Review against them twenty-six times. Of these suits, Microsoft won nineteen cases, lost fourteen cases, settled four cases, and eight are pending.
In terms of representation, Microsoft has worked with several firms, but in the district courts, they have been most often represented by Winston & Strawn, Sidley Austin, and Gillam & Smith. In proceedings before the Patent Trials and Appeals Board, the company usually works with Klarquist Sparkman, Sidley Austin, Fish & Richardson.
Consistent with national trends, most cases against Microsoft have been brought in the Western District of Texas; however, Microsoft faces a significantly smaller proportion of cases in this district than the national average, despite retaining a campus in the district.
Pro Se Litigation
Like any large and publicly known corporation, Microsoft has been the target of a fair few suits brought by pro se litigants. However, these suits are resolved fairly quickly. Cases brought by pro se litigants run on average 151 days and contain twenty filings, while all of Microsoft’s other cases run an average of 396 days and contain forty-nine filings.
Win Rate
Definitions and Caveats
To examine often Microsoft wins their cases, all the disparate outcomes need to be simplified into the company winning a case, tying a case, or losing a case. Thus, for the purposes of the following analyses, “winning” a case is defined as when a judge rules in the company’s favor or when the plaintiff bringing a case against them voluntarily dismisses their suit. A “tie” is defined as a settlement or when a judge delivers a mixed ruling. In Microsoft’s cases, mixed rulings most often take the form of the Patent Trial and Appeal Board ruling that some of the challenged claims are unpatentable while other are patentable. A “loss” is defined as when a judge rules against the company or when a company voluntarily dismisses its suit. Cases that are ongoing, transferred to another district, or remanded to a state court were excluded.
However, this discretization does not account for how much paying out a settlement affects the company’s business or cases in which the company achieved its goal outside of the suit and subsequently dismissed its case.
For the following analyses, “plaintiff” is defined as the party bringing the case, even when “plaintiffs” before the Patent Trials and Appeals board are dubbed “petitioners.” “Defendants” are the parties against whom the suit is brought, even if in a court this party goes by another term. Parties retain their “plaintiff” or “defendant” status on appeal, even if the appellant is the defendant in the lower court. In cases in which Microsoft participates as amicus curiae, “winning” is defined as the court ruling in favor of the side the company took in their filings.
Results
Across the board, according to the aforementioned definitions, Microsoft “won” 288 cases, “tied” 135 cases, and “lost” fifty-five case. 175 cases were excluded from analyses.
Splitting the cases by Microsoft’s role, the company was more likely to “win” cases in which they were the defendant compared to when they were the plaintiff or an amicus curiae.
