Microsoft XML technologies and patents drawing fire from multiple quarters

Microsoft XML technologies and patents drawing fire from multiple quarters

Summary: The recently announced XML-based file formats for Word, Excel, and PowerPoint -- formats that Microsoft has claimed to be "open" -- are getting some heat for not only pushing the boundaries on the definition of open, but also for the validity of the patents behind them.   In addition, the patents behind other Microsoft XML technologies are under heavy scrutiny as well.

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TOPICS: Patents
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The recently announced XML-based file formats for Word, Excel, and PowerPoint -- formats that Microsoft has claimed to be "open" -- are getting some heat for not only pushing the boundaries on the definition of open, but also for the validity of the patents behind them.   In addition, the patents behind other Microsoft XML technologies are under heavy scrutiny as well.

According to an in-depth story on eWeek.com,  the royalty-free terms under which Microsoft is making the formats available are not compatible with the GNU General Public License (the GPL).  In addition to being the software license used for Linux, the Free Software Foundation's GPL is one of the most widely applied licenses in the open source software world.   In terms of incompatibilities between Microsoft's license and the GPL, the upshot, according to the eWeek story, is that many free and open-source software projects will be prevented from using Microsoft's Office XML formats

According to the eWeek story, Stallman dismissed any benefit to the free-software community from the move, saying "It covers only code that implements, precisely, the Microsoft formats, which means that a program under this license does not permit modification."  Not only do open source licenses allow for modification, the spirit of the open source community encourages it.  However, in much the same way that there may be barriers to the free cross-pollination of Microsoft's XML formats with GPL-licensed open source, similar barriers exist to the incorporation of some non-GPL-licensed open source code-bases with GPL-licensed ones.  This state of balkanization within the open source community is directly related to the number of different and often incompatible open source licenses that have proliferated over the years.

The eWeek story goes on to say that Jean Paoli, the senior director of XML architecture for Microsoft, insisted Microsoft is committed to open XML file formats, but admitted that a requirement that forces those who use the XML file format to attribute this in their code "could preclude any technology that uses these file formats from being used in Linux and other open-source technologies licensed under the GPL."

As if the licensing controversy isn't enough for the new formats, there's also some question as to Microsoft's ability to enforce the licensing terms given the validity, or lack thereof, of the intellectual property rights that Microsoft claims to have to the technology.  The eWeek story goes on to discuss how the Public Patent Foundation's executive director Dan Ravicher picked apart the legal language that Microsoft attached to the XML formats and how it's unclear as to what patents, or pending patents, are the lynchpins to the license's enforceability. Said Ravicher, according to the story, "If they had any applicable patents, they'd most assuredly tell people what those patents are. I can't see that they have done that. So, all they've said is that they may have patents and, if they do, these are the terms under which they'll license them to you. While it is true the terms of such a license are GPL-incompatible, there is no need to comply with them until we are certain they have something that must be licensed."

When asked about the specific intellectual property that applies to Office's XML file formats, a Microsoft spokesperson told me via e-mail: "Microsoft does not comment on the scope of patent applications or patents. The language of the patent application speaks for itself. Others are free to summarize or characterize the contents if they wish. Generally, however, like other major technology innovators, Microsoft routinely applies to obtain patents on its inventions. A patent establishes ownership of an invention and is only granted if government patent examiners conclude that it is a true innovation compared with existing technology. While Microsoft has committed to a royalty-free license to create and distribute programs that can read and write the Office 2003 XML Reference Schemas, if it doesn't take the responsible step of patenting its inventions, then someone else will likely do so. The company wants to avoid this unnecessary confusion for its customers."

Elsewhere around the Net, one of Microsoft's newer patents -- one that's relevant to XML -- is getting vetted quite aggressively in an attempt  to demonstrate that at least some of the company's intellectual property rights may be baseless.  In his blog, Sun director of Web technologies Tim Bray (also, the co-inventor of XML) replays an imaginary conversation that Microsoft might consider to be the basis of an invention, but that Bray warns is not.  The implication of the mock conversation is that the core techniques behind Microsoft's patent on XML serialization and deserialization (US Patent no. 6,898,604) were already widely known (in other words, prior art existed) and that complementing it annotations is too simple and frivolous of an improvement to warrant new consideration by a patent body. But, if that's not enough of a prior art objection, Bray also excerpts a newsletter from Greg Aharonian of bustpatents.com, who unearthed what he considers to be significant prior art -- prior art that already existed at the time Microsoft originally filed for the patent in June 2001. 

Meanwhile, as a reminder, Microsoft has had several recent flirtations with the open source community, including one with Open Source Initiative acting president Michael Tiemann and another with Red Hat CEO Matthew Szulik.  Between those meetings, the spotlight that's being placed on Microsoft's claim to openness as well as to certain intellectual property, and the fact that the company has already released 17 different code-bases (perhaps more by now) under a range of licenses that are not purely proprietary (everything from "shared-source" to OSI-certified open source), could Microsoft just be midway through the throes of a painful transition that it must make to survive in a fully open world? 

Topic: Patents

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  • So what? Open source can't play. Big deal...

    There are a great number of technologies that can't be rolled into the GPL, it's just a fact of life. And quite frankly is the weak spot of the GPL as many are starting to find out.

    Hey, you don't think MS can enforce their patents, hire a lawyer, place your bet, and challenge them on it.
    No_Ax_to_Grind
    • I totall agree

      Most people pursuing the GPL are not for the benefit of society. They are there for their own agenda. And who says GPL is the ultimate licence that everybody has to follow.
      zzz1234567890
      • Interesting...

        "Most people pursuing the GPL are not for the benefit of society."

        Can you enlighten us on how you came to this conclusion?
        Patrick Jones
        • Enlightenment

          [i]Can you enlighten us on how you came to this conclusion?[/i]

          Or more to the point, why should it matter?
          Yagotta B. Kidding
          • You are kidding (nobody)

            It matters because Microsoft does things to benefit its goals and proponents of GLP do things to benefit their goals.
            If GPL has the right to put certain restrictions on users then Microsoft has the right to put restrictions on IP that it contributes. If you dont like it dont use it, but save everyone the trouble of having to listen to your tantrums.
            zzz1234567890
        • Stallman (nt)

          -
          Ardian Daka
          • And..

            since when is Stallman "Most people pursuing the GPL?"
            Patrick Jones
          • Well ..

            ... you wanted an example and I gave you one. Add all his supporters and followers and you will get a lot of people.

            Note: I'm not arguing in support of the world 'most' rather than 'quite a few'.
            Ardian Daka
          • The problem is finding

            his supporters and followers. I think once Stallman steps into his realm of "down with private software" most people let him go alone :)
            Patrick Jones
          • Stallman

            Stallman and all his followers still dont make 'a lot', infact they dont even make 'a few'.
            If you agree otherwise, give me a list of names other than Stallman. There are 6 billion people in this world. Lets see how long your list goes.
            zzz1234567890
    • Thought experiment

      [i]Hey, you don't think MS can enforce their patents, hire a lawyer, place your bet, and challenge them on it.[/i]

      Don, there was never any question that Microsoft could bankrupt just about anyone, never mind if MS even [b]has[/b] a patent, much less a valid one. Just the legal expenses in responding to a totally frivolous lawsuit are more than most individuals can afford.

      On the other hand, let's imagine that Microsoft gets a patent on QuickSort (hardly impossible, given the USPTO's rubber-stamp policy.) Let us further imagine that I publish the source code for a QuickSort function.

      Can Microsoft sue me? For what? Please be specific, because "patent infringement" isn't an answer. "Patent infringement" has certain legal elements, and at least in theory [1] you can't sue for patent infringement just because someone was eating dinner in front of the TV.

      [1] That's theory. In practice, as noted, you can indeed sue for patent infringement if you want to spend the money. You may lose your ante of a million or so, but so will your target. If you're out to intimidate others like him, it may be a good investment.
      Yagotta B. Kidding
      • Why imagine?

        The fact is MS can sue over infringement on any patnet they own. Seeing as how they hired IBMs top patent manager I would say they are serious about enforcing them.

        You saying "patent infringement" isn't legal grounds for a law suit simply flies in the face of reality.
        No_Ax_to_Grind
        • Thanks for not playing, Don

          [i]The fact is MS can sue over infringement on any patnet they own. Seeing as how they hired IBMs top patent manager I would say they are serious about enforcing them.[/i]

          As noted, they can even sue over patents that they [b]don't[/b] own. None the less, it's considered good form to at least allege actions that fall within the statutory definition of patent infringement. What, precisely, would they allege?

          (Hint: "My name is Jeff Merkey! You infringed my patent! Prepare to die!" is not a legal strategy with a record of success.)

          [i]You saying "patent infringement" isn't legal grounds for a law suit simply flies in the face of reality.[/i]

          Don, I hate to break the news but if you're going to file a lawsuit one of the technical details is that you have to allege a set of facts which fall within the legal definition of the charge. That's one of those little things that grown-ups who actually do real business learn; someday you too may be involved with business law and real life.

          The thought experiment was just a rhetorical framework for asking what allegations a software patent holder (in this example, Microsoft) might make in their Complaint to the Court.

          The fact that you had to descend so swiftly to abuse and distraction simply demonstrates, as you are so fond of telling others, that you have nothing of value to contribute.
          Yagotta B. Kidding
          • Because there was nothing to play.

            ---"As noted, they can even sue over patents that they don't own. None the less, it's considered good form to at least allege actions that fall within the statutory definition of patent infringement. What, precisely, would they allege?"---

            How would I know, I don't own the patent. However I am certain that MS has done their homework on it. But let us say for a second it's a bogus patent, (just for arguments sake) that doesn't do anything to their right to sue. If you violate the patent, regardless of it's validity, you open yourself to a law suit. Of course if you think the patent is invalid you can challenge it.
            No_Ax_to_Grind
          • Still begging the question

            [i]How would I know, I don't own the patent.[/i]

            Which is why I specified QuickSort in the original question. No ambiguity about the (stipulated) facts: you have a patent on QuickSort, I publish the source code for a QuickSort function.

            Is this patent infringement? You seem to say maybe not below:

            [i]If you violate the patent, regardless of it's validity, you open yourself to a law suit.[/i]

            Well, [b]Duh![/b]

            Now, is publishing the source code for a patented algorithm patent infringement? If it is, what do you allege in your complaint ("The bad mans are infringing my patents!" falls into a category that courts call "conclusory," and isn't generally considered persuasive.)

            I'm really interested in how you dodge this time. Running out the clock on ZD's comment nesting? (Of course, on the chance that someone forges your handle and actually answers they could just go back up to the original question.)
            Yagotta B. Kidding
          • Are you trying to make a point?

            If so it escapes me. If you own a patent you can bring a suit and ask that A. it's use be halted, and B. to recieve a monatary award.

            How simple is that?
            No_Ax_to_Grind
          • Let me see if I understand Yagotta B. Kidding

            I think he's trying to distinguish betweeen [i]using[/i] the code (creating & running an executable that was made from the code) and [i]distributing[/i] the code (handing out copies via the Internet).

            Now do you understand?

            Correct me if I'm wrong, Yagotta . . .
            CobraA1
          • Close, Cobra1

            [i]I think he's trying to distinguish betweeen using the code (creating & running an executable that was made from the code) and distributing the code (handing out copies via the Internet).[/i]

            I didn't even specify how it was published. A book would do.

            A source-code instantiation of a software patent is just a description of the same material. It's semantically equivalent to the patent itself, so if it's illegal to publish a description of the patented invention then the patent of the invention is also illegal.

            Or something like that. Don knows that if pressed for particulars he'd end up directly contradicting himself so he dodged instead.
            Yagotta B. Kidding
      • No, it is not patent infringement..

        If the algorithm is patented, isn't the source already available in the patent? Therefore you are just re-publishing part of a public document.

        Now, if you were to create software with said code, that would be patent infringement.
        Patrick Jones
        • Nope

          [i]If the algorithm is patented, isn't the source already available in the patent?[/i]

          Actually, software patents any more don't have "best method" examples. They just say, in effect, we think it would be neat if someone had antigravity.

          Then when someone [b]does[/b] come up with a way to do antigravity, they sue.
          Yagotta B. Kidding