Few things must be more emotionally paradoxical for the anti-patentistas of the world than to see Microsoft get clobbered on a patent infringement action. Do you rejoice because one of the great advocates, and enforcers, of software patents has gotten a strong dose of their own medicine? Or do you fret at yet another example of a patent system gone mad?
Oh coward conscience, how dost thou afflict me!
And boy, has Microsoft gotten clobbered! In case you haven’t seen the news, the infamous U.S. District Court of East Texas has issued an injunction against Microsoft selling or importing any copy of Microsoft Word that can open .XML, .DOCX, or DOCM files containing custom XML. That is on top of damages, determined in May, of $240,000,000 ($40,000,000 of which is for willful infringement) plus interest and per diem penalties, all for infringing on i4i’s patent relating to a system for manipulating the architecture and content of a document separately.
My normal reaction to these rulings is ho-hum. Given the mountain of poor quality software patents, and the well-earned reputation of the East Texas district court as the venue of choice for patent cases, it’s usually a matter of time before rulings like this are overturned on appeal. Indeed, the first thing that sprung into my mind when I started to look over the patent was formatting tags in WordPerfect circa 1982.
But the more I read through the patent claim the less confident I was with my initial reaction. In fact, I think this one might actually have some legs. Keep in mind is that this claim was filed back in 1994. The claim considers the existing state of the art at that time – formats like TROFF, RFT and SGML – before asserting that:
…in sharp contrast to the prior art the present invention is based on the practice of separating encoding conventions from the content of a document. The invention does not use embedded metacoding to differentiate the content of the document, but rather, the metacodes of the document are separated from the content and held in distinct storage in a structure called a metacode map, whereas document content is held in a mapped content area. Raw content is an extreme example of mapped content wherein the latter is totally unstructured and has no embedded metacodes in the data stream.
One thing seems clear to me – this is not a typical rubbish software patent that earns its filer a 20 year monopoly on the dead obvious. Fifteen years ago this would seem to me to have been an innovative idea. That is, of course, assuming that yet more detailed forensic software engineering examination finds a problem with the novelty of this claim.
But, if the validity of the patent is upheld then the immediate question is whether this will also impact ODF. If so, then this turns out to be a significantly more important issue and one which will crystallize the fury of the anti-patentistas. No longer will this be the source of some Schadenfreude at Microsoft’s expense. This will be seen as yet another attack on open standards and open software.
There is another interpretation that I fear will be lost in the noise. That is some introspective consideration of whether there is actually a rampant disregard in the software industry for other’s property rights. If it is not just .docx but also ODF that infringes then that could be seen as some pretty significant oversight, potentially even arrogance, on the part of Microsoft, Sun Microsystems and OASIS. And given that Microsoft was aware of i4i’s patents, one wonders why they didn’t just buy them (at a significantly reduced price then what they might end up paying now) and then target ODF for license agreements like they’re doing with their patent infringement claims against Linux.
As with all these patent issues there’s a lot more water to pass under the bridge before we can make a final judgement. But one thing seems pretty clear to me. Whether you agree with software patents or not the fact is that they exist. And that means we all need to understand the associated opportunities and risks and manage them accordingly.
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