RSSIs Microsoft violator or victim in i4i patent dispute?
By Joe Wilcox | Published August 12, 2009, 7:26 PM
Perhaps they don't use Microsoft Office at the courthouse in Tyler, Texas? Could there be no computers at all and just Selectric typewriters? I have to wonder following yesterday's injunction barring Microsoft from shipping Word.
I'm being snide because Tyler is the reputed "patent troll" capital of North America. Plaintiffs tend to win big judgments there, and surrounding vicinity, against companies like Microsoft. As such, it's easy to dismiss yesterday's court judgment as meritless. But is it?
Toronto-based i4i claims that Microsoft infringed on US patent 5,787,449, which was issued in July 1998. In March 2007, the company filed the case in Tyler, where a jury later found for i4i.
Come One, Come All Patent Trolls
Tyler is located 62 miles west of Marshall, another popular jurisdiction for filing patent lawsuits. Eighty-one miles to the south is Beaumont, where a lawsuit against Toshiba led to a $2.1 billion settlement in 1999. Southeast Texas is a popular venue for patent trolling. Patent defendants include Apple, Autodesk, Microsoft, National Semiconductor, Nintendo, Samsung, SanDisk and Sony. Some cases of interest:
- In November 2008, EMG Technology filed an infringement claim against Apple, less than a month after the patent was issued.
- The same month, a jury found that Sony violated an Agere patent and ordered payment of $18.8 million.
- In May 2009, a jury found that Microsoft violated the aforementioned i4i patent.
The Administrative Office of the U.S. Courts tracks the number and kind of cases filed each year. During 2008, in the Eastern Texas U.S. District Court, 358 of the 2,866 civil cases related to copyrights, patents and trademarks. There were even more contract disputes, 390, and 185 personal injury/liability cases. If that doesn't seem excessive, here's some perspective. The were 5,459 civil cases filed in Eastern New York District Court last year, only 170 of which were for copyrights, patents and trademarks. About twice as many civil cases, but only around half as many copyright, patent or trademark filings.
By venue, i4i's patent victory is easily dismissed. But the company nor the case are atypical for Tyler. Most patent-troll cases share fairly common characteristics:
- Most plaintiffs are companies or individuals, rather than, say, Apple, IBM or Microsoft.
- Patents tend to have been recently issued, typically not long before an infringement claim is filed.
- Plaintiffs typically don't produce actual products or offer services, which in many other court jurisdictions would raise questions about the patent's legitimacy.
- Plaintiffs demand a jury trial, and the case either goes to jury or to settlement.
- Area of filing is well known for either judges or juries favoring patent holders over defendants.
But i4i is for real, selling XML-based collaborative solutions, mostly to pharmaceutical companies. The patent's age and existence of a real company producing real products makes this case look quite different from the typical patent troll case filed in Tyler or the surrounding area.
Here's where I qualify that I am not a patent attorney. That said, I've covered enough Microsoft legal cases to know how to read and interpret legal findings. On this rarest of occasions in Southeast Texas, perhaps Microsoft has a problem.
Office Not so Open
For years I have bitched about Microsoft and XML. So-called "modern" Office file formats aren't XML, as Microsoft has claimed. They're XML-based. I was an early and fierce critic of Microsoft calling the formats Office Open XML, or OOXML. They're not "open" nor are they XML.
Microsoft file formats use proprietary schemas and allow Office customers to generate their own custom schemas. These custom schemas are akin to proprietary dialects. That's where "open" leaves OOXML. Two people can agree to talk the same language, but communication breaks down if one person uses a dialect or jargon the other doesn't understand. Office openness breaks down with Microsoft schemas. That said, there are places where that jargon, the custom schemas, make sense for how business manipulate data.
Starting with Office 2003, Microsoft heavily touted custom schemas' value to businesses needing to better define their data. Some of that definition is regulated, such as XML content submitted to the US Federal Department of Agriculture. Could it be coincidence that pharmaceuticals, where is i4i's main customer base, one of the markets Microsoft repeatedly touted as benefitting from custom schemas? Some examples from Microsoft's Website:
- Creating Pharmaceutical Structured Product Labels Using the Microsoft Office System
- Purdue Pharma clinical trial case study
- Case-Study: XML in the Microsoft Office System (Contoso Pharmaceuticals)
- Deborah Adler, principal designer of the ClearRx Prescription System
While Microsoft touted the value of custom XML schemas around Office System for several industries, pharmaceuticals stand out -- and it's i4i's principal market. Then, in the midst of this counter marketing, Microsoft did something i4i decided had violated its patent, which abstract states:
A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations. The system, for use by computer software developers, removes dependency on document encoding technology. A map of metacodes found in the document is produced and provided and stored separately from the document. The map indicates the location and addresses of metacodes in the document. The system allows of multiple views of the same content, the ability to work solely on structure and solely on content, storage efficiency of multiple versions and efficiency of operation.
Does Custom XML Violate i4i's Patent?
Based on my reading of i4i's March 2007 legal complaint, and other documents associated with the case, changes Microsoft made to better support customer needs for custom schemas and other data led to the core infringement. In Office, Microsoft provides proprietary schemas, such as WordprocessingXML to define data. But custom schemas, as I explained paragraphs ago, let businesses use definitions specific to their data needs.
Before the release of Office 2007, Microsoft starting referring to custom schemas in context of "custom XML." Microsoft's Brian Jones explained the change and reason for it a November 2005 blog post:
In Office 2003, Word and Excel both introduced support for marking up content in the files with custom defined schema, but one of the big things we saw from folks building solutions on top of our XML support in Office 2003 was the need to store your own XML data in the document. We had support for marking up a document with your own schema, but if you had data you didn't want to show to the user, there weren't a lot of options...In Office 12, we've introduced a new feature to the formats that we're currently calling the XML data store, and the way it works is really simple. As you should all know by now, the new format consists of a ZIP file with a bunch of XML parts (files) inside. Up until now we've talked about all the parts that we in Office have defined to create our documents...You can take any XML file and put it inside the ZIP package. Then all you need to do is create a relationship from the main document part to your XML part.
Microsoft used the ZIP file as a way of breaking up the format, allowing businesses to extract just the raw XML. But they can also add to it. Jones explains in the blog post: "The ability to put your XML in the ZIP package means that you now have a place to store any data your solution may need."
The i4i patent is called "Method and system for manipulating the architecture and the content of a document separately from each other." It's more practical application is some of the XML-based solutions, i4i offers today for pharmaceutical companies. A jury decided that the patent also applies to "custom XML" in Microsoft Word. Consider Microsoft custom XML support around the ZIP storage container, how customers can manipulate content and extract from or add to the container architecture.
Again, qualifying that I am not a patent attorney, to my eyes, the case has merit. Perhaps i4i carefully chose the venue of Tyler, Texas, but this doesn't look to me to be a patent troll case.
Even for Tyler, it's unusual for a judge to issue an injunction prohibiting sale of a major product, particularly something as widely used as Microsoft Word. The injunction says something about the seriousness of the violation.
How serious? The judge applied the "permanent" injunction not just to Word 2007, but the 2003 version and and "Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007...Future Word Products." He specifically notates "custom XML."
Hmm, sounds strangely like XPointer to me: http://www.w3schools.com...nk/xpointer_example.asp. How can one copyright a paradigm?
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|The case should not have any merit as Microsoft has been using this for 10+ years now. They should of sued way back when.
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|...and it's not like they didn't know about it since they've been making plug-ins for Word that entire time, right?
Yeah, this is ridiculous.
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|This is actually kind of fascinating. Everyone is all "MicroSuck" and "M$" and "they're evil", but threaten Word and watch EVERYONE rally. They author has a point. The case has merit. So they chose the venue that they did. Big deal. You would too. When you are dealing with a case where hundreds of millions of dollars are on the line, you don't quibble over the cost of a couple of airline tickets.
OK. The issue here is not that Word Processors store data, it is HOW it is stored. Instead of storing in a flat file like most, this patent (not copyright so stop talking about code) is about storing a series of data files inside of a container and how the data might be manipulated. The issue is the the DOCX file is a CONTAINER for other files. If I were Microsoft, I would be pointing out the Binder feature that they had back in Office 97. It was a file that could contain other Office documents and kept them all together. Not exactly the same, but they might be able to make the case that it was not a drastic leap to get to where they are now, from where they were.
If they were to use this defense and it worked, I would like to be compensated with free MS software for life.
Pat A.
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|Just wanted to point out that the city of Tyler, TX, lies in (what most Texans would refer to as) East Texas (Smith County: http://en.wikipedia.org/wiki/Smith_County,_Texas) and is much farther from Beaumont than you have indicated. That said, it is sad that Tyler and eastern and southeastern Texas in general have earned this type of reputation nationally.
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|Score: -3
|This is insane.
This judge should be barred from the bench.
XML is a standard. i4i does not own a patent for the standard so therefore can't claim any patent infringement.
When will these idiots in the Eastern District Of Texas get their heads on straight.
This coming from a Texan who's ashamed that our judicial system flat out sucks.
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|XML wasn't a standard when the patent was filed for in 1994. Should the patent apply to something that didn't exist? It wouldn't be the first, and most certainly won't be the last, time.
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|True, it may not have been a standard then but when it became a standard, all patent claims were moot.
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|One would think, that in the process of approving a standard, the group doing the approval might be charged with the responsibility of verifying that all patent claims are either Open, or at the very least, documented and accounted for....
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|I happen to live near Tyler, and I once worked there. I've also visited Toronto. Although there are many places in the US which are farther from Toronto than Tyler in terms of geographical distance, there aren't many which are farther in terms of culture, climate, and overall atmosphere. So it is more than blatantly obvious that i4i has gone far, far, far out of its way to sue in Tyler. This isn't just a little extra inconvenience for the sake of a slightly friendlier venue; this is clearly a cornerstone of their strategy.
If the case has merit, it would have merit anywhere in the US, including northern states more accessible to both i4i and Microsoft. If i4i were based anywhere in the southern or central US, I could certainly see the reasonableness of filing in Tyler. Hey, no sense in not choosing the most advantageous venue, as long as you're not going far out of your way. Except that i4i is going far out of its way, which suggests that they know up front that their case doesn't have enough merit to succeed elsewhere. Remember the Eolas patent which forced the "click to activate" hassle in IE (despite Microsoft receiving vocal support from all corners of the web including Apple, Adobe, Opera, and the W3C) until Microsoft finally paid out? The Eolas case was filed in Illinois, so clearly there other patent-friendly venues north of Texas.
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|Short of Microsoft literally obtaining and copying i4i's code how can it be patent infringement?
Patents such as this should never be allowed. (I'm no MS employee or shill)
How can a company use a patent to prevent others from competing?
It would be like a company A getting a patent on the car and all others who make a car are infringing on company A's patent.
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|This is so stupid, the patent is so freaking general.
It's not geared towards a specific invention or product in any possible way.
Surely there must be some programs and stuff that use that XML-stuff before July 1998?
It only has to be a project for experimenting, not a production software and that counts as prior art.
Can't MS go for obviousness?
Come on, there is a obviousness and prioir art law. Use it!
Microsoft is a victim in this.
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|It's hard to feel much sympathy for Microsoft, the monopoly that has crushed many a great company. Furthermore, the world has suffered long enough with the Microsoft platform, which has become the ideal Petri dish for malware. If this eventually helps Microsoft down the path towards no longer existing, the world will be a better place.
For the consumer, there are alternatives to Microsoft word. Google offers free Google Docs, and you can edit any MS Word doc with Google. Furthermore, your doc can be stored in the cloud, sot that when your machine eventually succumbs to the latest malware infection, facilitated by Microsoft products, your documents will be safely stored in the cloud.
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|"It's hard to feel much sympathy for Microsoft, the monopoly that has crushed many a great company."
Please provide actual facts supporting this. It's easy to use cliches such as this that most will blindly agree with, but I don't.
"Furthermore, the world has suffered long enough with the Microsoft platform, which has become the ideal Petri dish for malware."
Any dominant platform will be, malware will always be developed in greater quantity for whatever is used in the greatest numbers. If any other platform becomes more dominant, I'm sure we'll see that using it will cause us to "suffer".
"For the consumer, there are alternatives to Microsoft word. Google offers free Google Docs, and you can edit any MS Word doc with Google."
Wait, how can we be suffering long enough when there are other options?
"Furthermore, your doc can be stored in the cloud, sot that when your machine eventually succumbs to the latest malware infection, facilitated by Microsoft products, your documents will be safely stored in the cloud."
That doesn't even make sense.
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|haha... nice post PLeX :) My thoughts exactly
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|Obviously you don't get it.
Is it Microsoft's fault that people started buying their stuff and that someone didn't have the forethought to turn Unix into what Linux is today or that Apple was so close minded back then and even still to some degree today that they didn't market or compete?
NO, it is not their fault.
Malware/Spyware/Viruses/Trojans are written for the Microsoft platforms because they are the most prevalent platforms out there. Linux and Macs (OSX) are not immune to security holes, etc. These systems are just not the majority of things out there. Why write a trojan that steals a small amount of info from Mac users when you can write the same for Windows and gain 200 times that amount?
Your logic is flawed.
Cloud computing is a good idea but has its flaws as well. And remember the clouds can become hacked as well.
You should try to think a little clearer.
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|I got a feeling this wont bode well with college campuses and their students since the majority of colleges that I know of (and most of you as well) require the student to use the Word application for most assignments and all that jazz
I know that Microsoft WordPad is given to you with most Windows OS's nowadays, but not Word which is what they require you to have in college these days. WordPad would definitely not substitute for Word anyday since its fairly broken down with features n stuff
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|The whole problem begins, because patents are awarded where there shouldn't be. How can you get a patent for essentially formating documents? The whole patent concept sounds, like implementing the well known MVC (Model-View-Controller) design pattern. This is absurd and the whole patent system needs an overhaul. If this patent is valid, all modern word processors (and not only word processors) are violating this pattern. Don't ask me, the rhetorical question, why only Microsoft gets sued for this...
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|...I wrote above The whole patent concept sounds...meaning the specific i4i patent in question, not patents in general.
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|Microsoft is a victim. They are being banned from selling a product that includes a file format (the so-called custom XML) that they themselves invented. Microsoft has never willfully infringed upon anyone's patent.
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|Now, this is insane. I4i is just money hungry oh yeah, and the lawyers too! Again, another thing to destroy the economy. They only have 30 employees versus Microsoft's 75,000 employees! Who's the better company in providing jobs to the people... yet companies as such bleed good companies dry. Sad part, the US court is supporting it? Wake up people! Wake up! Once and for all! Stop bleeding money. It's so sickening!
And Excuse me, 50K employees are based here in the US. Irregardless of how less it is from what the 75K I quoted that are citizens... it's still thousands compared to I4i. The company is awesome! The benefits they give to their employees is overwhelming! The money they put to charity is unbelievable! I just think you're jealous! Microsoft is a company that knows business, has a heart and all Americans/ the government, even Euro and the justice system alike, just turn their heads the other way and tries to kill it! Tries to milk the company dry without even knowing what it has done for the country! And you wonder why the economy is where it is right now. Wake up people!
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|Yeah, if you have more employees, you can steal whatever you want! Go corporate America, who cares average joe and his rights?!
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|What a load of bull...
cynch72:
What does having more employees have to do with stealing? Wrong is wrong, illegal is illegal. The problem here is that that patent is *way* overly broad and IMO, completely unenforceable.
cekicen:
What do the "Average joe and his rights" have to do with employment? No-one has a "right" to be employed. They have the right to equal opportunity as anyone else, but you are *not* guaranteed employment just by being born...
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|This court ruling is worthless as the relevant patent 5,787,499 was withdrawn by the US Patent Office, probably by Microsoft's XML patent 7,571,169! http://www.uspto.gov/web...o/oeip/taf/withdrwn.htm
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|It's patent number 5,787,449, not 5,787,499, and that's not in the list!
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|I apologize. My source was for 499 was http://www.macobserver.c.../?utm_campaign=shorturl .
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|Victim. Strongest proof is that case was heard by Judge Leonard Davis, one of the dumbest and most corrupt judges on the federal bench.
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|The USPTO used to require users to get a barcode font that they themselves had not licensed.
The USPTO/law firms all use Word, although they prefer PDF as a final format.
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|Your opening line is more correct than you might think. For many years, probably even now, the primary word processing program used in all federal court offices was WordPerfect.
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|Don't you mean Selectric typewriters?
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|Yes. Typo fixed. Thanks.
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