Now, I am not a lawyer. But, I’ve been reporting on IP (intellectual property) law issues for years now, so I know something about how these issues are resolved, and when I see that one attorney thinks there’s an "easy technical work-around" for Microsoft’s patent violation in Word, my alarm bells go off. There is no easy fix here, and, short of waving the white-flag, Microsoft may very well have to stop selling Word, and thus Microsoft Office, this fall.
Here’s why the "easy" solutions really don’t work.
First, there’s the suggestion from the attorney that "All Microsoft has to do is disable the custom XML feature, which should be pretty easy to do, then give that a different SKU number from what’s been sold so it’s easy to distinguish the two versions." Oh yeah, that’s easy.
The custom feature, described by patent # 5787449, covers a fast way of saving XML (eXtended Markup Language) documents. Microsoft uses it to save documents in Word 2003’s default .DOCX and Word 2007’s default Open XML format. If you think for one second that changing something so fundamental as how documents are saved and their formats is easy, you’ve never done any programming at all. Even if you could magically change that, there are endless processes in Word that would need to be modified to deal with the new way of saving and reading documents.
That leads me to my next point. Let’s say a miracle happens, and Microsoft does make the changes in Word and it actually works. What about all those billions of documents that are already in the old format styles? What about the hundreds of millions of users still using the older versions of Office? Every Office user in the world would end up having to fight with incompatible files and conversion woes. That would go over really well don’t you think?
I’ve also heard it suggested that the i4i patent be over-turned. Oh kid, if over-turning patents were easy, everyone would be doing it.
Once in place, even the worst patents take years to overturn. And, the i4i patent, now that I’ve had a chance to read it more closely, isn’t that bad. I dislike all IP patents, but since we’re stuck with them, to my inexpert eye it appears there’s enough differences between what this patent describes and what’s done with historical SGML (Standard Generalized Markup Language) that the patent would probably stand up in court.
Not, mind you that that whether a patent is valid really matters. Bad patents, like the ones used by NTP against RIM (Research in Motion) in the Blackberry patent case, work just as well as good ones for shaking money out of companies. In NTP vs. RIM, for example, all of NTP’s patents have run into serious trouble, but RIM was still forced to pay NTP $612.5-million to keep everyone’s Blackberries running. Oh, and three years later, the NTP patents, although regarded by everyone, outside of NTP’s owners and employees as junk, have still not been finally over-turned and they may not be finally thrown out for another half-dozen years.
In short, Microsoft can forget about getting this patent over-turned as a quick way out of its Word troubles.
I also think that Microsoft shouldn’t put too much hope in the idea that it can dodge this patent bullet by delaying things in court. Microsoft has already tried ignoring the matter. What they got for that was U.S. District Court Judge Leonard Davis slapping them with an additional $40 million in "enhanced damages" for Microsoft’s "willful infringement." All together, the court has upped Microsoft’s fines from $200-million to $290.6 million. I think starting a long appeals process with this judge is just asking to be slapped with more damages.
I predicted that when RIM paid off NTP, we’d only see more patent lawsuits and that that this in turn would mean higher costs for business technology users and less innovation. Well, here we are, and this time it’s Microsoft instead of RIM facing a no-win patent law situation. There is no easy way of these situations with our current patent legal system.
Microsoft says they won’t settle. So did RIM. They’ll settle. The only fast way out of a patent lawsuit that’s reached this point is surrender and that’s exactly what Microsoft will end up doing.
Ironically, if Microsoft hadn’t insisted on shoving its own proprietary Open XML standard down users’ throats and had whole-heartily supported the truly open ODF (Open Document Format), Word would have an option for its users that would have avoided the i4i patent mess. Oh well, too late now!
A version of this story first appeared in ComputerWorld.
