Microsoft Aims to Axe Cortana Patent Verdict, $242 Million Award

Microsoft Corp. asked a federal trial court to upend a jury verdict finding its Cortana digital assistant infringed the patent rights of IPA Technologies Inc., and the jury’s $242 million award.

Microsoft claims it is entitled to a judgment as a matter of law, or a new trial, because the verdict and award “are against the great weight of the evidence, and because IPA’s damages presentation was based on expert testimony that should have been excluded” as unreliable, in a motion filed in the US District Court for the District of Delaware.

IPA was required, but failed, to show that the Cortana server software “actually performed each step of the claimed method for a given service request,” Microsoft said. The failure to make this showing entitles Microsoft to JMOL on infringement, the company said.

Microsoft also argued that the expert testimony on hypothetical willingness to pay for a feature of a computer as a gauge for damages didn’t address the extent of its use once the computer is purchased.

Even if IPA had shown actual infringement, Microsoft is entitled to JMOL on damages, the company said. The damages award “vastly exceeds the amount necessary to make IPA whole, meriting an alternative remittitur to $1.95 million, which corresponds to the only record evidence suggesting the purported value, if any, of a license” to the patent, Microsoft said.

Microsoft additionally asserts that the court failed to properly instruct the jury on damages, triggering the right to a new trial.

The jury, in their May 10 verdict, rejected Microsoft’s argument that they should invalidate US Patent No. 7,069,560, entitled “Highly scalable software-based architecture for communication and cooperation among distributed electronic agents,” which had expired in January 2019.

Cortana was available on all devices running the Windows 10 operating system, according to a May 2 pretrial order. IPA alleged direct infringement “when user commands from any Cortana-enabled device were received and processed by a Microsoft server system(s) where the relevant elements of that server system(s) were located in the United States, regardless of the location of the device that originated the command.”

IPA had sued Microsoft in January 2018, as part of a broader litigation campaign that once included Amazon.com Inc. and Alphabet Inc.'s Google. IPA last year said its corporate parent, Wi-LAN Inc., was owned by Owlpoint IP Opportunities JVF I LP and Quarterhill Inc.

Bayard PA and Skiermont Derby LLP represent IPA. Morris, Nichols, Arsht & Tunnell LLP; Sidley Austin LLP; and Winston & Strawn LLP represent Microsoft.

The case is IPA Technologies Inc. v. Microsoft Corp., D. Del., No. 18-cv-00001, motion filed 6/7/24.