A Patent Ban on Microsoft Word and a Haiku

I haven’t written about software patents in a while.  I still hate them and think they are an illogical construct.  But first, a haiku from xkcd to warm you up (and make you smile).

Haiku Proof

I woke up this morning to the announcement that Microsoft can’t sell Word anymoreApparently a judge in that hot bed of intellectual thought and discourse, the U.S. District Court for the Eastern District of Texas, has ordered a permanent injunction that "prohibits Microsoft 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.”

Wait, is this the same Microsoft that was forced to change their doc formats and make them “more open” by some judiciary somewhere for antitrust (“anticompetitive”?) reasons.  Ok.  But wait, the rabbit hole gets deeper.

Apparently this injunction (filed by i4i – a company that according to their web page provides “Labeling Conversion, Collaborative Authoring, Document Management and Publishing Solutions to support your global regulatory compliance requirements.”) is based on an assertion that Microsoft willfully violates a 1998 patent (No 5,787,449) about how to “create and edit XML content from a word processor.” 

Pause for a second.  Note the irony and weirdness of all of this.  There have been a spate of specific XML related patents recently (I’m going to bet that Microsoft has a few of them – why not, gotta keep that patent group busy.)  Um – isn’t XML an open standard?  Aren’t there a bunch of document processors that read and write XML (like all of them)?  Seems like it should be illegal (or at least invalid) to be granted a patent on something built on top of an open standard!  Nah – let’s just argue about GPL and its various forms for a while – that’s more fun.

It gets worse.  The judge in the case, in addition to enjoying torturing Microsoft with an injunction, ordered Microsoft to pay i4i over $290 million in damages.  At this point I paused and pondered why a Canadian company was suing Microsoft in East Texas.  Maybe it’s warmer there.  I certainly know the beer isn’t better.  I could keep going, but I’m running out of sarcasm (has someone patented that yet?)

In one of my fantasy parallel universes, long time software thought leaders – ranging from individual software artists (you know who you are) to the very largest companies would get together and decide how to take an approach to this absurdity that could be proposed to the appropriate government entities (we’ll start with the PTO and Congress, but it’s always worth a trip to the Supreme Court if necessary.)  To do this, some of the largest software companies need to step back from their stupid case by case legal strategies and decide to try to reform (transform?) how this works.  Until then, it’s probably going to just going to go on and on and on.

Q.E.D., Bitches! indeed.  That’s often how I want to just end my argument on software patents, but I know this particular universe doesn’t work that way.  Too bad for me.

Oh – and did anyone notice that a different judge (Patel in this case) ruled against RealDVD and “granted a preliminary injunction in favor of the major motion picture studios and DVD-CCA in their legal battle with Real Networks over its RealDVD products.”  I’m going for a run now – maybe that’ll make me happier.

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  • What's completely bizarre here is that Judge Davis has serious tech cred. Undergrad in Mathematics and a history as a programmer and analyst. One would think he would be more reasoned regarding open source. Or not.

    • One thing well reasoned in the Eastern District of Texas is the cottage industry of hotels, restaurants, copy shops (including 9 Fed-Ex Kinko's near Marshall) and satellite offices for major patent litigation firms that have sprung-up in support of the court's hospitality to patent plaintiffs, in particular the non-practicing entities (NPE aka "The Trolls").


  • What would be really cool would be if all the carriers stopped running Internet and cell service to Marshall.  Now that would be funny.

  • It would be awesome. I thought a law was passed eliminating venue shopping. Perhaps it was not at the Federal level. I think a state law was passed in Mississippi, a notorious mass tort haven.

    • Not a law exactly, but the Fifth Circuit ruled that a district court must grant a motion to transfer venue when the transferee venue is shown to be “clearly more convenient”. (In re Volkswagen and In re TS Tech USA Corp). I'm not sure if this has had a material impact on venue choice.

      I really hate this…what a broken system…

  • DaveJ

    If a patent is being infringed by a product, it is also illegal to use that product in a way that infringes. That means that everyone should stop using the .docx format or they are infringing a patent. This seems to me a good outcome – I hate .docx.

    PS: Sarcasm was invented by Biff, Christ's childhood friend, over 2,000 years ago, and although apparently infringement was a problem for Biff at the time, any patent rights have long expired (although it may be that the Millenium Copyright Act extended *specific* instances of sarcasm – brings a new meaning to the"millenium" part of the name).

  • DaveJ

    I just had another funny thought.

    Someone should look into whether the court that issued the opinion uses Microsoft Word.

    • Ok – now that's funny. I was laughing so hard I had to sit down because I though I might choke or vomit.

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  • Chris B

    Patents in standards? Of course not, errr???? Actually, there are thousands of patents now in standards and it's making the whole system untenable. I'm afraid it has become such a tight knot of craziness it's going to take more than a court overturning the judgement of a Texas District judge to sort it out.

  • I am still torn on whether you should even be able to patent things like this. I can see both sides of the argument, but obviously the people who grant patents typically do not understand what they are reading. So how can you trust them to make the right decision?

  • I am still torn on whether you should even be able to patent things like this. I can see both sides of the argument, but obviously the people who grant patents typically do not understand what they are reading. So how can you trust them to make the right decision?

    and xkcd > *

  • You can’t.  The system needs to change.

  • ChrisG

    I know that the facts are largely irrelevant in these conversations, but sometimes the details are important. This patent filed in 1994 is innovative for the time, and it is not patenting XML at all. Microsoft was working with i4i, ripped off their tech and almost destroyed the company. What would you think Brad if they did it to one of your startups? Of course there are a lot of crap patents, but not all patents are crap.


    • While I don’t know the history of Microsoft and i4i, I read the overview to the patent and simply do not buy its novelty and uniqueness.

  • Microsoft is just in a money making business. The don't don't care about all these laws. Its nice that the court stopped them for selling the latest release of office.
    I think there must be some law related to bad windows quality. It crashes every time. 🙂

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