MS Word: Live by the patent, die by the patent? (rant)

[zridling]

Microsoft, Adobe, Apple, IBM, et al. are all guilty of chasing each other in the insane patent race. One has even gone so far as to patent gestures (such as diagonal movement across a phone screen), another downloading; gestures and downloading damnit! But this time, thanks to a patent-friendly court in East Texas (US), Microsoft gets kneecapped as a judge has issued an injunction that prevents it from selling Word 2003 and Word 2007 in the US after October 10th.

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[Stoic Joker]

Every time I hear about this it just seems like a bad dream. Was the judge bribed? or is he just an idiot?

It seems like the only ways left to achieve the "American Dream" these days are to:
"Win" a game show.
Marketing Campaign (Spam Flood) some Scam-Ware anti-evil "utility".
Invent some frivolous lawsuit & leverage the courts to extort a fortune out of someone for you.

Earn it? Hard work? Those are such outdated concepts now-a-days...

[steeladept]

I was just learning about this yesterday, and from what I understand, the judge is actually very smart.  He supposedly holds a Computer Science Degree and was a programmer before getting into Patent Law.  On the flip side, there is also evidence that Microsoft knew about it and ignored it anyway hoping they wouldn't notice.  Since they didn't bring suit right away, they just continued into version 2007.  Just another point proving the need to revamp this outdated set of laws.

Personally, since there is typically really only one or two particularly efficient algorithms,  I would like to see it where the only patentable code (if any must be patentable) is completed works that have a particular and unique outcome.  I liken most code segements to building blocks - there are only so many ways to put them together.  It is like patenting bricks, mortar, and building shape(s), all in separate patents.

  "Sorry, you can't build that building in a rectangular shape without paying us $$$.  Nope, we have circular, oval, and triangular shapes patented too.  Our competitor has the 'freeform' shapes patented as well.  Good luck."

Absurd...It isn't the code that should be patented, it should be the finished product.

Now for the sticky part...How do you define at what point something is unique and patentable?  If my program does the same thing as yours, but yours is monolithic code, whereas mine is 15 different subprograms; am I infringing?  What if it is used in a different context (such as grocery cart programs for managing online checkouts)?  If you base it on some combination of look, feel, AND function; at what point is it legal imitation vs. infringement?  And why can't we have varying degrees of infringement such that if it is determined that the infringement really did take place, but it is a gray area; so you will be penalized much less harshly.  Proof that it was known and deliberate - throw the book at em...

Enough of my thoughts....

[Carol Haynes]

As I understand it the company bringing the patent suit have a legitimate argument. They will never win though because MS will drag it out until the crack of doom. The EU have been trying to tame MS for many years and even with an unlimited budget they can hardly be said to have won the war yet.

The recent issue about MS winning a patent on XML as a format for wordprocessing ducuments becomes a bit clearer now - presumably MS will now argue that they own a patent preventing the company suing them from inventing their own patent retrospectively. The whole system is mad but it will be interesting to see is MS are actually forced to withdraw Word from the maket - even for a day!

Personally I am amazed that MS haven't simply bought a large island somewhere (say Australia), call it Microsoftland and invent their own local patent and trading laws that means they can legitimately flood all markets worldwide with what ever they want. If they were an independent nation they could easily set the rules and so many countries and companies are so tied into their products they would easily win the right to trade on their own terms. If MS moved out of the US and refused to supply or support their products in the US market America would be a third world nation within days! (Some would argue that it has already happened in some states.)

[steeladept]

I like the tongue in cheek statements if that is what they were...

Microsoft has already lost the suit and has till October 10th to remove the product from the shelves.  Of course there will be a stay or settlement before then, but the suit was lost and an appeal to drag it out would first require a stay of execution before they can extend it.  The judge recommended a $200 million settlement as just compensation.  If the plaintiff agrees to that, then it may well be worth it to MS to just settle.  I don't know the truth to it, but according to the source I heard this from, MS makes more than that from Office each day.  I find that difficult to believe, but it is definitely more than that yearly (mostly in the form of Software Assurance contracts no doubt).

As for the idea of buying a country, I think that would very quickly backfire on them.  First they would need to set-up a government in addition to moving the corporation - no small feat.  Then dealing with import/export laws of the U.S. and the very real chance of reprisals from many U.S. governments (mostly local governments) for this move.  Heck, the EU already moved in this direction.  I don't think it would kill the U.S., and may not even hurt it much; but it certainly would change things in a hurry.  It would just force societies to change faster than they otherwise would.  No, I think the idea would be far to risky for the potential payoff.  Nice ideas though

One thing is for sure, that would give Apple a huge boost just from the outrage alone...

[Carol Haynes]

I don't think it would kill the U.S., and may not even hurt it much

I don't know - if MS pulled the kill switch on Windows (which it could easily do via in Vista since it has a kill switch, and through the backdoor in Windows XP that they use to illegally install 'updates') practically the whole of the US economy would stop over night.

[40hz]

Well...Microsoft could always just buy i4i and render the whole thing moot.

I'm wondering if that's i4i's strategy behind filing suit in the first place...

Look how well it's worked for SCO. Their case is still dragging on despite the fact the courts have already ruled SCO doesn't hold any patents which SCO continues to claim are being infringed on.

Gotta love the American legal system.  

[zridling]

Problem is, it's far more difficult to overturn a patent than most think. If it were easy, lots of patents would be overturned each month. Microsoft has made things worse by not dealing with this, thus the judge hit them with an additional $40mn in "enhanced damages" for Microsoft's "willful infringement." All together, the court has raised Microsoft's fines from $200mn to $290.6mn. Starting a long appeals process will likely bring more damages to Microsoft's bottom line.

Here's the crazy irony. All the gymnastics Microsoft went through to get MS-OOXML approved as an ISO standard may be awash. If they had only went with ODF, no infringement would have occurred.
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Here is the patent if you're curious.

Still, in the end, as Stoic Joker and steeladept noted: PATENTS KILL INNOVATION.

[f0dder]

zridling: I've not read the patent (I'm not so good with legalese), but how would going with ODF have saved MS? ODF also uses XML. But perhaps the patent was made specifically to target the way MS uses XML in OOXML?

Both formats are retarded anyway, compared to the efficiency of dealing with efficient binary formats (like .DOC). Ever tried saving a several-hundred page document in either of the XML based formats? yuck!

[40hz]

zridling: ... but how would going with ODF have saved MS? ODF also uses XML.

I can't remember where I read it, but i4i has supposedly stated that ODF is not infringing on their patent. Which is interesting...

But perhaps the patent was made specifically to target the way MS uses XML in OOXML?

Interesting idea. Although how i4i could have done that before Microsoft came up with MS-OOXML is anybody's guess. 

[Carol Haynes]

Interesting idea. Although how i4i could have done that before Microsoft came up with MS-OOXML is anybody's guess. 

That's simple - i4i came up with the idea and sensibly patented it, MS used it and then claimed it was their idea and patented it and as usual claim that i4i had a time machine and only placed the patent after MS came up with the idea.

[zridling]

Ah, more details emerge from i4i on how the patent doesn't involve the MS-OOXML format itself, but the Custom XML element used in Word 2003/07:

* "The suit is not about file formats, and the verdict has no implications for Open XML,” Kutz added. “It is about the way Microsoft Word handles certain kinds of code. In addition, the particular Custom XML functionality at issue is not used by most customers."

* "i4i said it has looked at OpenOffice and found it doesn’t infringe on its patents."

* Why the i4i and Microsoft patents do not apply to ODF

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Finally, Amy Wohl explains the whole mess better than anyone I've read so far:
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It's important to know what a custom tag is, so you'll understand that although it's critical to some users (such as large pharmaceutical companies), it's largely unused by the average Word user.  XML (which is the basis not just for Word but for other modern word processors such as OpenOffice, as well) allows text to be tagged.  Standard XML tags are built into Word for objects like names, item numbers and so forth; these standard XML tags are not at issue in the patent disspute.  However i4i holds a patent on software that allows a company to create custom tags so that it may, for example, collect all the objects that contain a particular ingredient or were approved by a particular manager.  Pharmaceutical companies use it to get the rght information onto medicine labels.

According to my conversation with i4i's attorney, Doug Cawley of McCool Smith, Microsoft at first referred customers to i4i for this custom tag function, but then decided to build the function into Word; he explained that documents made public at the trial indicate Microsoft chose to proceed knowing that they might make i4i obsolete by including custom tags in Word.
...............

[40hz]

Interesting idea. Although how i4i could have done that before Microsoft came up with MS-OOXML is anybody's guess. 

That's simple - i4i came up with the idea and sensibly patented it, MS used it and then claimed it was their idea and patented it and as usual claim that i4i had a time machine and only placed the patent after MS came up with the idea.

Ah, thank you Carol. I knew there would be a logical explanation for it.

[f0dder]

So... any software that allows users to create their own XML tags could be targeted by this? How lame.

[Carol Haynes]

I don't think it is as simplistic as that - the whole point of XML is that tags are user definable. It is something to do with the way MS embed stuff within the XML schema.