RSSStep one in the process: Microsoft files appeal of Word injunction
By Scott M. Fulton, III | Published August 19, 2009, 11:06 AM
Almost everyone who has been observing the patent infringement case in US District Court in Eastern Texas surrounding Microsoft Word (Betanews correspondents included) have predicted that this is the opening round in a very long dance whose steps are pretty much pre-determined: The merits of Canadian software firm i4i's case seem questionable at the very least, and cases like this are typically either overturned on appeal or settled out of court. But one can't help feeling that there's an ever-so-slight chance of this being not really a dance but a train wreck in progress, the slim possibility that the ironically named i4i has found the one loophole in US patent law just waiting to be exploited: the notion that a heretofore unclaimed function that should seem obvious on its face, may not qualify as prior art for the sake of a patent challenge.
Yesterday, as first reported by the Seattle P-I, Microsoft filed its emergency motion for a stay of injunction, with the US Federal Circuit Court of Appeals. It could have filed a boilerplate appeal, simply saying the company has a viable case but needs time to present it. It didn't. Instead, it gave everyone including i4i a peek at the big cards it's willing to play, an advance look at the Supreme Court argument it's willing to make if the case should go that far.
What i4i has been contesting is not, as some have reported, that it created XML or custom XML. Rather, i4i says it developed and patented a method for separating markup tags from content when formatting a file that uses custom XML. Since Office 2003, Microsoft has been using the concept of separating tags from content for custom XML, in a way that the company's attorneys cite that i4i actually publicly praised at the time the feature was introduced.
Here's the argument: The same concept is used to format non-custom XML files; and i4i, Microsoft states, already conceded that fact, saying that application of the concept is non-infringing. If that's the case, i4i's single patent merely authenticates the application of an existing and obvious function, to an existing and obvious purpose.
"i4i has not alleged that use of Word necessarily infringes the '449 patent," reads Microsoft's appeal. "Rather, i4i has alleged that Word users infringe the '449 patent only when they use Microsoft's software to open files of certain formats (.xml, .docx, or .docm) that contain custom XML instructions, asserting that when used in this manner, Word separates tags from content and stores them in the manner claimed by the '449 patent. It is undisputed that opening files and the familiar and most-common '.doc' and '.dot' formats -- even if such files contain custom XML -- is not an infringing act."
The concept of separating formatting instructions from content, and utilizing an encoded map to place the instructions in their proper place, predates XML considerably. As Microsoft said, the old .DOC and .DOT formats utilized this method; but actually, so did WordPerfect. With regard to markup languages specifically, Microsoft cites what it claims as prior art in its appeal: the use of metacode separation in two different SGML-based editors called Rita and DeRose -- a realization that has already led the US Patent Office, cites Microsoft, to reach a preliminary conclusion that i4i's patent is invalid.
So Microsoft's argument can be borne out like this: If i4i has no complaint about Microsoft's method in the general sense, but only in the specific instance of custom XML, then its complaint is not about the methodology of metadata separation, but the application of the concept of it to a market that i4i would claim for itself. And i4i has no claim on that, since the idea pre-dates both companies' involvement in word processing. A patent cannot be used to claim a market.
The lower court did throw out 13 of i4i's claims, but ended up keeping the few on which it eventually prevailed. Keeping those claims, Microsoft's appeal says, reflects an inconsistency on the part of the lower court's interpretation of the i4i '449 patent. The patent requires the interpreter program (in this case, the word processor) to enable independent manipulation of the content and the code that formats the content, in such a way that one can be changed without the interpreter having to pore through the map of the other. Microsoft says it was going to argue that its methodology did not meet that requirement of the i4i patent, and therefore did not match i4i's methods that it says Microsoft infringed upon. But then the court, Microsoft said, accepted the arguments of an i4i expert witness who stated on the stand that independent manipulation of the code and content was a "benefit" of the patented method, not a requirement.
So Microsoft is saying i4i changed the rules in mid-game, and the Texas court went along with it.
In closing its appeal, Microsoft cited the final ruling in a landmark 1892 patent dispute, Pope v. Gormully: "It is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly." When Microsoft is willing to use that last word in its own defense, it's signaling that it has no fear.
The patent should never have been granted in the first place. I've reviewed the '499 patent, and in my professional (technical, not legal) opinion, the prior art in the DeRose patents (mainly 5557722) thoroughly anticipates the later patent. I doubt anyone who was working in the field at the time, or anyone expert in these technologies, would disagree. The Patent Office must simply not have noticed it at the time, or I'm confident the Vulpe patent now being used against MS would never have seen the light of day.
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|appeal?!
they should file an apology and pay the royalties.
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|For all those that of the opinion there is no prior art re this matter, I suggest your either "google"
"We saw [i4i's products] some time ago and met its creators. Word 11 will make it obsolete," said one email from Martin Sawicki, a member of Microsoft's XML for Word development team. "It looks great for XP though."
Alternatively try this link.
http://www.informationwe...tml?articleID=219300122
Cheers,
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|Awww....
How cute.. Your originality is awe inspiring. I bet your parents are so proud!
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|Except that says nothing about taking their tech it says we will be better then our competitor and make them obsolete...
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|If you microsofties spent more time actually working to make your products better instead of responding to criticism with such a mature approach, then _perhaps_ we would have a bit more respect for you.
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|What? No one here works for MS your comment makes no sense? We are debating, you say something then we can rebut, its how these things work on a mature approach, speaking of mature - microsofties? What? Are you 10 now?
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|"No one here works for MS..."
ROFL. Yeah RIGHT!
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|Tool i am most disapponted with your comment not only is it peurile, it is indeed the ‘tort of a ‘tard. Perhaps the expectations of a rational comment from the omniscient one (read know all!) were too great {insert guffaws here}. indeed, it may well be that you followed the suggestions, and the result stunned your normal numbskull. To such an extent, the ususal asinine response is noticable by its omission.
All jokes aside, we all know MSFT would never ever with malicious aforethought steal anothers’ IP. What, don’t we?
http://en.wikipedia.org/wiki/Ric_Richardson
http://en.wikipedia.org/wiki/Uniloc
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|I see from the comment ratings Joe that you have many pro-msft readers, you should be flattered :-)
I believe that microsoft is one of the biggest patent chasers, registering just about everything that they can, whether it has a direct relevance to their expected business or not. I find it incomprehensible that people will whinge about someone trying to legitimately protect their IP? Have you ever had a look at how msft threatens everyone and their pets? Give me a break. I hope that all of this arm-chair lawyering is incorrect and that i4i give it to MSFT up the money chute - it really could not happen to a nicer bunch of folks!
(Now let's see how many negative ratings this post gets...dimwits)
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|Examples?
Most of the stuff that MS holds patents for are products that are in production, testing or exist. A patent chaser would be someone who holds onto said patent, never makes a product with it and then sues someone who makes it.
Now Apple they sue for just about anything that contains an "i" or the apple design even if it has nothing to do with their business but the fact it looks something like it...granted this is more about trademarks but to sit there and act like MS is the only company that holds patents and goes after individuals who infringe on them is stupid.
The problem with your "you hope they pay" attitude would be a big problem as that patent opens it up for i4i to go after other companies using a similar tech as vague as the patent is.
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|You can have a look through the hundreds of thousands of patents yourself, but the digital camera with luminance correction, or the remote vehicle control system, or the healthcare resource locator spring to mind. I am sure there are many others, even more obscure.
I have seen first hand how Microsoft have used their, er, lets just call them business practices, to kill competition and innovation. To say that I do not like MSFT would be an understatement - their questionable business practices are well documented, and their hand-on-heart commitment to honorable values is just rubbish.
By virtue or their monopoly status they should be subject to more stringent oversight. They have definitely made it harder/impossible for me the consumer to choose from alternatives.
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|True MS tries to scare Linux by saying it has patents about it.
(Google for FAT32 and Tomtom )
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|Except those three you listed are actual products...
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|Except from reading the documentation Tomtom caved - they are paying MS a fee to use technology that infringes on their patents - basically a cross licensing agreement that MS has been doing with a lot of open source companies, its what they originally wanted and got it, so where is the trying?
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|After reading through the patent, as well as articles detailing the case and methods used, it is pretty clear that i4i really has no legal ground in their case. The patent describes a method of one file describing how to use another file. This format of description was around long before i4i thought of it. The only real difference is they made it a tad more narrow by saying "one xml file" describing how to use "another xml file." The precondition to the method is the xml file has to be "customized". Take a normal xml file, change on tag in it, and then in the description file, tell a program how to use the new xml tag. They have patented revisions of an xml file. Noone had ever thought of changing a xml file and it's describer until i4i thought of it?
Nope, i4i is defintely in this because they had a viable product in the market and Microsoft stole it..............
I am by far a non-microsoft person. But, just think of the implecations of this case. Once they win said gigantic settlement against Microsoft, who are they going to go after next? It won't be long before any product that uses a customized xml file with another file describing how to use the customized xml file is forced to pay what will be called the "i4i tax". I'd love to see Microsoft get nailed for something bad, but not for something that blatantly doesn't pass the "idiot in a hurry" test.
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|doesn't matter if no one thought about it before i4i or even if they did. i4i is the one who took the next step and applied for a patient. BTW, I think i4i is wrong in this case and M$ will win, but the lawyers will be filthy rich too!
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|*Hides under the Prosecuters desk chuckling and whispers to himself* "Go Microsoft!"
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|Office is one of the most profitable product lines at Microsoft. Do you think they would let it slide?
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|It is very clear to everyone that i4i is in this for money. Otherwise, they would not have filed so many cases to see which one will make it in. Further, they would not have filed in TX if they would have a strong case to begin with.
Such a waste of taxpayers money, time and everything else. Companies like i4i should not be even in business if they cannot create a profitable product on their own.
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|They did have a profitable product which Microsoft stole. That is why there is a lawsuit. why would you not file in a court favorable to your position? That is like giving up a home field advantage
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|Favorable? Its patent troll city which almost all claims from that court have been overturned or thrown out later, If they truly had something on MS they would have gone to a more respected court.
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|IANAL, but if there is any advantage to be had in filing in one court versus another, I would do whatever i could to gain any type of advantage.
"Its patent troll city which almost all claims from that court have been overturned or thrown out later..."
Care to share your stats with us ?
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|Enjoy: http://www.technologyrev...300,p1.html?a=f&a=f
And no, Microsoft didn't steel their "product". They simply want money from Microsoft.
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|What exactly does that link have to do with this? LOL. And yes, Microsoft did steal (not steel) from them. Try this link for the real story....http://www.groklaw.com/
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|I think, fatty, you forgot to get past the ads on that link... there's a legitimate article about the court cases
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|Companies like i4i should be sued out of existence for wrongfully damaging companies like Microsoft. Seriously, a permanent injunction is simply too steep of a penalty in this specific case.
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|Wowz, Microsoft is going strong and serious on this one.
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|"A patent cannot be used to claim a market."
Are you kidding? This is what they are used for.
"When Microsoft is willing to use that last word in its own defense, it's signaling that it has no fear."
This is very pro-Microsoft, everybody who cares knows already!
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|Wow, Microsoft really unloaded the big guns on that motion. But pretty much everyone knew Microsoft wasn't going to take this one up the money chute.
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|"In closing its appeal, Microsoft cited the final ruling in a landmark 1892 patent dispute, Pope v. Gormully: "It is as important to the public that competition should not be repressed by worthless patents, as that the patentee of a really valuable invention should be protected in his monopoly."
ROFL. So Microsoft, who threatens GNU/Linux with patent violations as part of its large FUD machine to repress GNU/Linux competition is now crying foul because someone is doing it to them. Pot, meet kettle. LOL. I love it.
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