Microsoft Word patent-infringement case: Playing chicken

Microsoft Word patent-infringement case: Playing chicken

Summary: September 23 is the date a federal appeals court has set for a hearing in the i4i vs. Microsoft patent infringement case over Microsoft Word. I'm doubtful Microsoft will let things go that long.

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September 23 is the date a federal appeals court has set for a hearing in the i4i vs. Microsoft patent infringement case over Microsoft Word.

I'm doubtful Microsoft will let things go that long. I'm betting we'll see either a settlement between the Redmondians and the Toronto-based company that won its patent suit in Texas a week ago -- or Microsoft will issue a patch for Word that will pull Custom XML from the product.

According to the ruling in the case, which Microsoft is appealing, Microsoft is prohibited from selling or importing to the United States "any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML.”

I've heard Microsoft already has developed a patch for Word 2007 which disables the Custom XML functionality and is ready to roll that patch out, via Windows Update, at a moment's notice.

Microsoft legal spokesperson Kevin Kutz wouldn't comment on that patch. Instead, he maintained the consistent company party line: "As we've maintained throughout this process, we believe the evidence clearly demonstrates that we do not infringe and that the i4i patent is invalid. We look forward to filing our appeal and to Court of Appeals review. "

Microsoft requested an expedited review in the case -- via which company officials claimed enforcement of i4i's patent would result in "irreperable harm" to customers if the Softies were forced to pull Word from the market. -- was denied.

Microsoft's legal team is great at playing chicken with lawyers and their clients. The back and forth over Windows 7 E, the browserless version of Windows 7 that Microsoft is currently holding in its back pocket in case its settlement talks with the European Commission go awry, is evidence of that.

Any predictions on what will happen in the i4i case? Will Microsoft settle, patch or choose some other route?

Topics: Windows, Collaboration, Microsoft, Software, Software Development

About

Mary Jo has covered the tech industry for 30 years for a variety of publications and Web sites, and is a frequent guest on radio, TV and podcasts, speaking about all things Microsoft-related. She is the author of Microsoft 2.0: How Microsoft plans to stay relevant in the post-Gates era (John Wiley & Sons, 2008).

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40 comments
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  • If you don't infringe, then why do you care to prove

    the patent is invalid?
    frgough
    • Because a court does think you infringe

      Do you know what is a court, don't you?
      markbn
    • Because legal precedents are bad.

      They create frivolous opportunities for more lawsuits that are completely retarded, and if it's not Microsoft it's going to be someone else.

      Companies should be able to patent ideas, yes, but they shouldn't be allowed to profit off a patent... they should be profiting off their ability to put the patent to work through actual development.
      GoodThings2Life
      • /me considers history

        [i]Companies should be able to patent ideas, yes, but they shouldn't be allowed to profit off a patent... they should be profiting off their ability to put the patent to work through actual development.[/i]

        In other words, individual inventors should have to go begging for crumbs because it's a buyers' market.

        Consider, please, the consequences that this policy would have had in the 19th century.
        Yagotta B. Kidding
        • problem is....

          They patented an "idea", which was vague as all and with no working model or being applied in any way within an application.

          On the other hand, if some has an idea, and puts it into process, then a patent (or in the case of application dev, a copyright) becomes legit.

          Unfortunately i4i never did this.
          kaninelupus
        • The magic industry

          look at the magic idustry: People patent [i]devices[/i] that create the illusion of turning a person into another object, they don't patent the [i]concept[/i] of turning a person into another object.

          Otherwise, a broad patent along the lines of "A trick in which a illusionist transforms a living person, animal, or inanimate object into a different animate or inanimate object" would cover every trick in which a person transforms something into something else, and keep [i]every[/i] other illusionsist from doing a trick along the same lines

          Sure, you can copywrite your act (where another illusionist can't copy your act 100%, prop for prop) but nothing stops them from doing their own variation on the trick, as long as they didn't steal any patented trade secrets from you to accomplish it.

          That's why patenting an idea, without any thought on how to do it should be thrown out.

          At least with patents in the past, they came with a sketch of the product or improvement detailing how the never before conceived ideal works.

          Today's software patents should be handled the same way, otherwise how long before we read a patent like: "an engine/device that allows faster then light travel of an object or craft between different points in the universe" gives someone the right to moneys from the guy who actually creates such an engine?
          John Zern
  • They will patch

    and then will try vigorously to render the offending patent invalid.

    i4i will become the next Eolas: irrelevant but with a lot of money from MS.
    markbn
    • Exactly. (nt)

      (nt)
      GoodThings2Life
  • I really hope...

    MS loses this one, however I am more inclined to believe this will end with a settlement (and a hefty one at that). For a company like MS, who think patents are the end all and be all of their business model, they better learn to take as good as they give
    Dave32265
    • Sure...

      ...and let's set up some nasty precedents that allow other companies to be sued over nonsense patents that should have never been issued in the first place while we're at it.

      Genius? Not so much.
      GoodThings2Life
      • i4i's patent looks good and....

        definitely properly issued. However, MS's latest XML patent is definitely flawed and should be invalidated immediately.

        This case is just one of many where MS has thumbed their nose at someone elses patent hoping not to get caught. Then they have to turn around and pay the patent holder. This is just the way MS conducts business. It was obvious to the judge that MS blatently disregarded this patent knowing they were infringing. I hope MS is called to the carpet evertime they use such tactics.
        bjbrock
      • Well, if...

        they want patents so bad then they better be prepared to play this lawsuit game as well as dish it out. I personally think this whole patent deal on software is a bad idea. It stifles innovation and just creates more cashflow for lawyers.

        The fact is, the patent does exist and MS does not own it. They knew the patent existed and refused to pay up but used the Custom XML anyway. They get what they deserve.
        Dave32265
        • You can't nfringe an invalid patent

          Patents aren't really valid until someone sues them and they hold up. In the case of the i4i patent, the PTO already had it under review (with an eye to revoking it), because there was plenty of prior art and the small matter of the DeRose patents which preceded them. I would guess Microsoft believed the i4i patent would not prevail in court.
          amywohl
  • If they patch...

    ...I hope it destroys i4i's add-ons.
    GoodThings2Life
    • LOL!

      Wouldn't THAT be a kick in the rubber parts, eh?
      mgp3
  • Another idiotic patent lawsuit

    I've patented toilet paper... everyone who wipes their
    a**, pay up now!

    -M
    betelgeuse68
    • Prior art, sorry.

      nt
      Bill4
      • Actually, their patent predates the XML standard

        Although I agree that this is a patent troll case, there is a difference here. Their patent actually pre-dates the XML standard.

        This is not as a straight case as one would think. I'm not sure MS would be able to get out of it easily.

        Now, what I find amazing is that MS was given a patent for XML docs when the existence of the patent being used against them should had disqualify the application. It shows you the level of incompetency in the patent office.
        wackoae
        • "I agree that this is a patent troll case"

          By that standard, [i]all[/i] patent litigation is "patent troll cases."

          i4i had an invention and marketed a product based on it. Microsoft saw that it was useful, and fully knowing that i4i held patents on it (they were in negotiations over the technology) not only created products based on i4i's invention but strong-armed it into an international standard.

          Microsoft's unlicensed use of i4i's invention cut into i4i's sales.

          Now, aside from making software unpatentable (which I support) how the frick do you see anything wrong with how i4i conducted themselves?
          Yagotta B. Kidding
          • Actually .....

            i4i never produced a product for their patent. They just sell a license for others to use.
            wackoae