Beijing Zhongyi Zhongbiao Electronic Information Technology Co. Ltd. v. Microsoft Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEIJING ZHONGYI ZHONGBIAO
ELECTRONIC INFORMATION
TECHNOLOGY CO. LTD.,
Plaintiff - Appellant,
v.
MICROSOFT CORPORATION,
Defendant - Appellee.
No. 13-36102
D.C. No. 2:13-cv-01300-MJP
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Senior District Judge, Presiding
Argued and Submitted June 8, 2016
Seattle, Washington
Before: PAEZ, BYBEE, and CHRISTEN, Circuit Judges.
Beijing Zhongyi Zhongbiao Electronic Information Technology Co. Ltd.
(“Zhongyi”) sued Microsoft Corporation (“Microsoft”) alleging copyright
FILED
JUL 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 3 --

infringement. The district court dismissed the complaint and Zhongyi appeals. We
have jurisdiction, 28 U.S.C. § 1291, and affirm.
Zhongyi argues that the district court erred by finding that the license
agreement between Zhongyi and Microsoft included a license to use Zhongyi’s
fonts in operating systems released after Windows 95. We disagree. The
agreement’s terms granted Microsoft a “perpetual” license to use the fonts in “any”
Microsoft software product.
Nor did the district court err by refusing to look to memoranda of
understanding between Microsoft and the Chinese government as extrinsic
evidence of a limitation on these broad contract terms. Washington law does not
permit a contracting party to use extrinsic evidence to add a new extra-contractual
limitation to a contract. See Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d
262, 267 (Wash. 2005) (en banc).
Zhongyi also argues that the district court erred by failing to grant Zhongyi
leave to amend to assert that the Chinese-language versions of the memoranda of
understanding between the Chinese government and Microsoft more clearly
showed Zhongyi and Microsoft’s intent to limit the license’s scope to Windows 95.
But this amendment would be futile because, as discussed above, the district court
was correct to not look to the memoranda as extrinsic evidence of an extra-
2

-- 2 of 3 --

contractual limitation on the contract’s terms. Regardless, Zhongyi identifies only
a single, insignificant translation discrepancy in one of the two memoranda.
Finally, Zhongyi seeks leave to amend to assert that, under Chinese law, the
license agreement required Chinese governmental approval, and the memoranda
showed that the Chinese government only approved a license for Windows 95.
Even assuming that Washington would refuse to enforce a contract that violates
Chinese law, and that Zhongyi has standing to raise this argument, leave to amend
would be futile because neither memorandum actually limited the scope of future
licensing to Windows 95.1
AFFIRMED.
1 In its briefing, Zhongyi sought leave to amend to assert a reformation
claim. Zhongyi also sought a ruling that Microsoft was collaterally estopped from
asserting its non-infringement argument and its broad reading of the license
agreement due to a Chinese court’s contrary findings in a parallel proceeding.
Counsel explicitly waived these arguments at oral argument.
3

-- 3 of 3 --