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Microsoft banned from selling Word


It sounds like a joke. But, it’s real and it’s anything but a joke for Microsoft. Judge Leonard Davis, of the U.S. District Court for the Eastern District of Texas, has issued an injunction (PDF Link) 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."

Microsoft had been sued by i4i, a collaborative content solution and technology company. Its founder, Michel Vulpe, owned a patent covering a way of reading XML (Extended Markup Language) documents. XML is the basis of Microsoft’s controversial Open XML document formats. The U.S. District Court for the Eastern District of Texas is infamous for supporting patent lawsuits and fast-tracking them. In intellectual property law circles, this Court has become known as "A Haven for Patent Pirates."

In this case, though, i4i isn’t a patent troll. It’s a real company that uses its patented technology in real products. It also believes that Microsoft has used its patent in Word. And, what’s to the point, they convinced Judge Davis of this.

On May 20th 2009, Judge Davis and his court’s jury ruled that Microsoft owed i4i a $200 million patent infringement verdict for having infringed on i4i’s "A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations," patent # 5787449.

Microsoft didn’t settle. Boy, was that a mistake.

As lawyers who have dealt with Judge Davis before know he doesn’t suffer fools lightly. So on August 11, he signed the order that blocks Microsoft from selling Word. According to the document, "This injunction becomes effective 60 days from the date of this order." So, on or about October 12th, Word, and Microsoft Office since all versions contain it, will go off store shelves.

Some people, like Michael Cherry, an analyst with Directions on Microsoft, don’t think that Microsoft will have to stop Word sales. Sorry. Microsoft may very well have to stop sales or disable Open XML, Word’s new standard document format. This injunction will not be easy to dodge.

Nick Eaton at SeattlePI reported that, Microsoft wants to fight this out. Eaton wrote that Microsoft spokesman Kevin Kutz said, "We are disappointed by the court’s ruling. We believe the evidence clearly demonstrated that we do not infringe and that the i4i patent is invalid. We will appeal the verdict."

Good luck with that Microsoft. No, I’m not being sarcastic.

Now, I am not a lawyer, but I know something about IP law and a fair amount about markup languages since I’ve been covering them since SGML (Standard Generalized Markup Language), showed up in the late 1980s and before anyone had dreamed up the Web’s HTML (Hypertext Markup Language) or XML. To me, the i4i patent reads like a classic, over-reaching patent that covers prior art, which should have prevented it from ever becoming a patent. It’s these kinds of patents, and courts like the Eastern District of Texas, which approve these IP patent lawsuits almost as a reflex, which harms everyone in the technology business.

As anyone who reads my stuff knows, I’m no fan of Microsoft. I also think Open XML is a junk standard. But, that said, while Microsoft’s legal team certainly mishandled this case so far, Microsoft doesn’t deserve this kind of punishment for this particular misdeed.

This time it’s Microsoft’s turn to be bashed, but next time it may be an open-source company, or your company. Many big technology companies pay up to patent pirates,

A version of this story first appeared in ComputerWorld.

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