Practical Technology

It seems that Microsoft knew all along that they were going to get hit like a drum by i4i when the Canadian company won its XML patent lawsuit. Of course, that isn’t what Microsoft said when the judge ordered Microsoft to pay i4i $290-million and stop selling any version of Word or Office that could create .XML, .DOCX or .DOCM files that contained custom XML formatting. But, now Microsoft has run up the white flag and the company is frantically jerking the feature out of its currently shipping Office programs.

Now, part of me wants to say it couldn’t have happened to a nicer company. After all, Microsoft loves to play the bully with its own patent portfolio. Earlier this year, Microsoft used its patents like a sledgehammer on TomTom, the GPS device company.

I also find it more than a little funny to see how Microsoft was crying about how unfair it all was not just to Microsoft but, as Microsoft’s lawyers put it at the time, to all the little people out there "who require new copies of Office and Word would be stranded without an alternative set of software." Microsoft’s attorneys also claimed that the situation would be a "major public disruption," and would "have an effect on the public due to the public’s undisputed and enormous reliance on those products."

Cry me a river. OpenOffice works just fine and it’s free to boot.

It turns out Microsoft may not have really intended to appeal the case. They were only buying time to write their way around i4i’s patent. Or, I should say, to try to write their way around it. You see, in today’s U.S. legal system–keep in mind I’m not lawyer but this is my quick and dirty description–a patent isn’t about specific lines of copyrighted code, it’s about an expression of an idea. You can’t simply delete the offending code; you have to get rid of the idea.

And the idea of i4i’s patent # 5787449, which is entitled, "A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations," is about as broad as you can get in a software patent.

I think it’s especially impressive that Microsoft is now claiming that they can get rid of all that even in the four-months that they did manage to beg out of the courts. I mean, heck, I remember when they claimed they couldn’t possibly remove like, oh, say, a Web browser from Windows.

Andrew ‘Andy’ Updegrove, who is an attorney, indeed he’s a partner at the well-known intellectual property law-firm of Gesmer Updegrove, wrote to me, "Microsoft has always portrayed this as a discrete feature, and they have had at least since August to work on swapping it out. It’s interesting, though, that they’ve been able to pull discrete features out of a tightly bundled set of functionalities when it’s so hard to separate out actual products (say, Windows and IE).

Updegrove continued, "The interesting thing to see will be whether this Microsoft opted to completely delete the functionality, or whether it has included something in the same neighborhood that it says is non-infringing. If that’s the case, then I imagine i4i will be looking at the new version very closely to see whether it does, or does not agree that the new version of Office is indeed non-infringing."

That’s where I think Microsoft may end up in hot-water again. I don’t see how they keep both their customers happy if they have trouble editing documents as they move from older to newer, legal copies of Word and Office and back again, while avoiding i4i’s patent.

Updegrove, as he describes in his Standards Blog, thinks Microsoft may be ready to give up, but they may still elect to fight on, or, even now, still reach a settlement with i4i. Still, make no mistake about it, this latest legal defeat hurts. "The i4i – Microsoft litigation remains a game of high-stakes, commercial chess, being played out by two obviously skillful opponents. And while the game isn’t quite over yet, it’s fair to say that Microsoft just lost its Queen," wrote Updegrove.

Personally, I think they’ll end up settling with i4i and paying a pretty penny for a license. With document incompatibles on one side, and the prospect of getting beat up some more for no purpose in court, it’s the smartest move to make.

Still, while I’m pleased that Microsoft lost, in the end, we’re all losers so long as patents continue to strangle software development. Here’s hoping that the Supreme Court will do the right thing in the Bilski case and kill off business process and software patents once and for all.

A version of this story first appeared in ComputerWorld.