05.11.09

Gemini version available ♊︎

Reader’s Article: The Microsoft Patent Threat to ODF

Posted in Free/Libre Software, FUD, GNU/Linux, GPL, Microsoft, Office Suites, Open XML, OpenDocument, Patents at 4:06 am by Dr. Roy Schestowitz

by Paul E. Merrell, J.D. (Marbux)

Coming on the heels of its April 28, 2009 release of Microsoft Office 2007 Service Pack 2 (“SP 2″), Microsoft has added several versions of the OpenDocument Format standard (“ODF”)to its list of specifications covered by the Microsoft Open Specification Promise (“MOSP”). The expected move casts the pall of the Microsoft software patent cloud over ODF, which is supported by many free and open source software (“FOSS”) computer programs.

SP 2 adds native ODF read/write support to Microsoft Office 2007 and is slated to become an automatically installed update to Office 2007 in approximately 75 days.

“The MOSP was criticized on several grounds including transferal of insufficient patent rights to implement OOXML, extreme ambiguity, and provisions incompatible with the Gnu General Public License.”The MOSP achieved notoriety during the processing of Microsoft Office Open XML into ISO/IEC:29500-2008 Office Open XML (“OOXML”). The MOSP was criticized on several grounds including transferal of insufficient patent rights to implement OOXML, extreme ambiguity, and provisions incompatible with the Gnu General Public License. Major critiques were published by Groklaw, the Software Freedom Law Center, and the University of New South Wales Faculty of Law.

Although the points raised by the Groklaw critique — also addressed in the later University of New South Wales critique — were published in January of 2007, Microsoft has apparently never responded to any of the specific criticisms. (Disclosure: although unattributed, this writer researched and drafted the portions of the Groklaw document criticizing the MOSP.)

Microsoft lawyer Steve Mutkoski, who co-authored the MOSP, was interviewed by ZDNet Asia in regard to the University of New South Wales critique but did not address any specific criticism included in the University publication.

One question raised by the Microsoft extension of the MOSP to ODF is whether Microsoft actually controls any patents whose claims read on implementation of ODF. As with Microsoft’s claim of patent infringement by the Gnu/Linux operating system, Microsoft has not identified any specific patents that implementation of ODF might infringe.

According to a 2007 Fortune magazine interview with Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez regarding Microsoft claims that Gnu/Linux infringes, Microsoft “refuses to identify specific patents or explain how they’re being infringed, lest FOSS advocates start filing challenges to them.”

But [Gutierrez] does break down the total number allegedly violated – 235 – into categories. He says that the Linux kernel – the deepest layer of the free operating system, which interacts most directly with the computer hardware – violates 42 Microsoft patents. The Linux graphical user interfaces – essentially, the way design elements like menus and toolbars are set up – run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

While Microsoft has not identified any specific patents whose claims read on ODF implementation, the Microsoft claim that the OpenOffice.org (“OOo”) office suite infringes 42 Microsoft patents raises reasonable grounds to suspect that some of the same patents — if they in fact exist — may read on implementation of ODF, since OOo is presently the market-leading implementation of ODF.

However, a follow-on article published by RedmondDeveloper attributes to Microsoft a statement that OOo infringes on 45 patents rather than 42, which leaves the precise number of patents claimed to be infringed by OOo ambiguous.

It is equally reasonable to suspect that Microsoft lawyers’ concerns that FOSS advocates might challenge the patent’s validity has only increased since the 2007 Fortune interview. Since then, the U.S. Court of Appeals for the Federal Circuit has severely undermined (PDF) its precedents approving of software as patentable subject matter but has reserved a ruling on the specific issue for a later case in which a software patent is at issue:

We leave to future cases the elaboration of the precise contours of machine implementation, as well as the answers to particular questions, such as whether or when recitation of a computer suffices to tie a process claim to a particular machine.

That case was preceded by indications that U.S. Supreme Court justices doubted whether software is patentable subject matter, an issue on which that court has never ruled.

Microsoft’s list of specifications covered now includes the following ODF standards:

  • OpenDocument Format for Office Applications v1.0 OASIS
  • OpenDocument Format for Office Applications v1.0
  • ISO/IEC 26300:2006
  • OpenDocument Format for Office Applications v1.1 OASIS

Microsoft also added language to the MOSP specific to those standards and to Ecma 376, the predecessor of OOXML:

As long as Microsoft participates in their revision process to completion, Microsoft irrevocably commits to apply this promise to future versions of the below listed specifications.

That language resolves one criticism of the MOSP but leaves all others unrepaired, leaving the MOSP still hopelessly ambiguous. Microsoft also added its own Implementer’s Notes for ODF 1.1 to the list of covered specifications, with a new definition of “Microsoft Necessary Claims” specific to those implementation notes and those for ECMA 376, which served as the draft for ISO/IEC:29500 OOXML:

With respect to these Implementer’s Notes, the definition of “Microsoft Necessary Claims shall be – those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement the information contained within the Implementer’s Notes when read in conjunction with the Covered Specification to which the Implementer’s Notes applies to the extent the information is described in detail and not merely referenced in such Implementer’s Notes”.

In this writer’s opinion, the injection of a definition for the Implementer’s Notes different from that applied to ODF itself does nothing more than increase the ambiguity of both definitions in combination. However, with both, the problem remains that patents are not “necessary to implement” a specification.

“As a practical matter, Microsoft’s extension of the MOSP to ODF is in my considered opinion unlikely to have anything beyond propaganda value to Microsoft, the ability to extend its infringement claims to ODF implementations other than OOo.”Software is written in code, not in patent claims, and a specification can be implemented regardless of whether a patent would thereby be infringed. “[P]atents that are necessary to implement” a specification is a null set and no rights are thereby conveyed. It remains worrisome that Microsoft continues to foregop usage of widely-adopted and well understood language for the conveyance of patent rights such as “patent claims that are necessarily infringed by implementation” of a specification.

Rather than repeating what has previously been written, the reader is referred to the other critiques of the MOSP linked above as to other and equally troubling issues embodied in the MOSP.

As a practical matter, Microsoft’s extension of the MOSP to ODF is in my considered opinion unlikely to have anything beyond propaganda value to Microsoft, the ability to extend its infringement claims to ODF implementations other than OOo.

Never-withdrawn and expansive Microsoft public statements about the extent of the rights conveyed by the MOSP when it was first issued remain at odds with what the MOSP actually says. Those statements were beyond question intended to induce reliance on the statements, and an estoppel or waiver of any contrary rights would likely be found by a court reviewing the issues.

Likewise, Microsoft’s failure to take any legal action to assert the rights it claims are being infringed in more than two years plus its refusal to identify the specific patents involved raises the affirmative defense of laches, that Microsoft slept on its rights too long.

Because of those factors, the movement by courts toward curtailing or eliminating the patentability of software, and the likelihood that any assertion of relevant Microsoft patent rights would trigger patent Armageddon as other ODF implementers’ patent portfolios are fired in retaliation, it appears likely that the patent stand-off between FOSS advocates and Microsoft will continue, with every day of delay in pursuit of its claimed legal rights strengthening the argument that Microsoft slept too long on its rights.

Still, Microsoft’s continued claims of patent infringement by FOSS developers and its refusal to alter the MOSP to make it compatible with any other licensing scheme — from FOSS to proprietary in nature — stand as concrete barriers between Microsoft and other software developers, barriers that can only be removed by a good faith Microsoft effort to create a patent rights structure that other developers can work within.

A patent promise that threatens to jerk the legal legs out from under any who dare to implement the covered specifications is an unstable foundation both for any software development effort and for those reformers within Microsoft seeking to improve working relations with FOSS developers.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

A Single Comment

  1. The Mad Hatter said,

    May 11, 2009 at 10:01 am

    Gravatar

    Microsoft? Good Faith?

    Yeah, right.

DecorWhat Else is New


  1. Links 29/11/2021: Linux 5.16 RC3 and Lots of Patent Catch-up

    Links for the day



  2. By 2022 0% of 'News' Coverage About Patents Will Be Actual Journalism (Patent Litigation Sector Has Hijacked the World Wide Web to Disseminate Self-Promotional Misinformation)

    Finding news about the EPO is almost impossible because today’s so-called ‘news’ sites are in the pockets of Benoît Battistelli, António Campinos, and their cohorts who turned the EPO into a hub of litigation, not science; this is part of an international (worldwide) problem because financial resources for journalism have run out, and so the vacuum is filled/replaced almost entirely by Public Relations (PR) and marketing



  3. Trying to Appease Those Who Never Liked Free Software or Those Who Blindly Loved All Patent Monopolies to Begin With

    It’s crystal clear that trying to appease everyone, all the time, is impossible; in the case of the EPO, for example, we hope that exposing Team Battistelli/Campinos helps raise awareness of the harms of patent maximalism, and when speaking about Free software — whilst occasionally bashing the alternatives (proprietary) — we hope to convince more people to join the “Good Fight”



  4. Links 28/11/2021: Laravel 8.73 Released, GitHub Offline for Hours

    Links for the day



  5. IRC Proceedings: Saturday, November 27, 2021

    IRC logs for Saturday, November 27, 2021



  6. Links 27/11/2021: Nvidia’s DLSS Hype and Why GNU/Linux Matters

    Links for the day



  7. [Meme] Linus Gabriel Sebastian Takes GNU/Linux for a (Tail)'Spin'

    If you’re trying to prove that GNU/Linux is NOT Windows, then “haha! Well done…”



  8. GNU/Linux is for Freedom and It'll Gain Many Users When (or Where) People Understand What Software (or Computing) Freedom Means

    Software that respects people's freedom (and by extension privacy as well) is an alluring proposition; those who choose to try GNU/Linux for the wrong reasons are likely the wrong target audience for advocates



  9. Amid Reports of Microsoft's Competition Crimes in Europe...

    European companies are complaining, but they seem to overlook the principal aspect of an imperialistic system with bottomless pockets (almost 30 trillion dollars in debt already; US national debt soared again last month); Microsoft is shielded by a political system with military (“defence”) as bailout budget to help cushion international expansion for data grab and technical leverage, as we've seen in the case of EPO (this is all political, not technical, and should thus be treated as a political/corruption issue)



  10. Is Linus Trolling the GNU/Linux Community?

    This new video responds to what many sites have been provoked into amplifying



  11. Links 27/11/2021: Tux Paint 0.9.27 and SeaMonkey 1.1.19 in EasyOS

    Links for the day



  12. [Meme] Keeping Our Distance From Microsoft

    The OSI is the dagger, the Linux Foundation is the knife, and many others are the sword by which Microsoft tries to get into the very heart of GNU/Linux and extinguish the Free software movement



  13. Microsoft Edge Encourages Indebted Americans to Guilt-spend Just in Time for Christmas

    Guest post by Ryan, reprinted with permission



  14. IRC Proceedings: Friday, November 26, 2021

    IRC logs for Friday, November 26, 2021



  15. 38+ Years of GNU and 19+ Years of FSF Associate Membership

    “On November 25, 2002,” Wikipedia notes, “the FSF launched the FSF Associate Membership program for individuals.” As the above video points out, it all started almost 40 years ago.



  16. Gemini as a Platform for Gamers

    Contrary to what people often assume (or are led to assume), even without client-side scripting Gemini can accomplish a great deal; early adopters, many of whom are technical, test the limits of the very minimalistic (by design and intention) specification



  17. Improved Workflows: Achievement Unlocked

    Today we've completed a bunch of small projects that can make us more efficient (e.g. more Daily Links per day, more articles); the above video was recorded many hours ago to accompany the outline below



  18. Links 26/11/2021: New Complaint About Microsoft Competition Crimes in Europe, EuroLinux 8.5, GhostBSD 21.11.24, and Kiwi TCMS 10.5 Released

    Links for the day



  19. Links 26/11/2021: F35 Elections, Whonix 16.0.3.7, OSMC's November Refresh With Kodi 19.3

    Links for the day



  20. IRC Proceedings: Thursday, November 25, 2021

    IRC logs for Thursday, November 25, 2021



  21. IRC Proceedings: Wednesday, November 24, 2021

    IRC logs for Wednesday, November 24, 2021



  22. Links 25/11/2021: PHP 8.1.0 Released and Linux 5.15.5

    Links for the day



  23. IBM as Master of Hypocrisy

    Free software projects and Free software developers have long been humiliated by corporations of Western misogynists, falsely claiming that the Free software community isn’t inclusive enough (these are shameless projection tactics; as a matter of public record, the exact opposite is true) and even the eradication of supposedly offensive language isn’t something IBM takes seriously



  24. Links 25/11/2021: LibreOffice 7.2.3 and Mesa 21.2.6 Released

    Links for the day



  25. [Meme] So Desperate That Edge Cannot Even Exceed 4% That They Block Rival Web Browsers

    Linux/Android/Free Software/GNU (they go by very many names/brands) may continue to grow to the point where Windows is as irrelevant as Blackberry; this means that Microsoft’s grip on the Web too has slipped — to the point where Microsoft frantically uses 'bailout' money to hijack LinkedIn, GitHub, etc. (it also rebrands almost everything as "Azure" or clown to fake a perception of growth)



  26. Windows Vista Service Pack 11 (Vista 11) Has Failed to Curb the Growth of GNU/Linux

    Windows market share continues to decrease in spite of billions of dollars spent bribing the media for fake hype, especially in light of a new Windows Service Pack (SP), Vista SP 11



  27. Links 25/11/2021: Proton 6.3-8 and Linux Mint Compared to Ubuntu

    Links for the day



  28. 3.5 Years Later the 'Master' of Fedora is Still Microsoft and IBM Cannot Be Bothered to Alter Git Branch Names (Refuting or Ignoring Its Very Own Directive About Supposedly Racially-Insensitive Terms)

    Today we demonstrate the hypocrisy of IBM; years after telling us that we should shun the term "master" and repeatedly insisting it had a racist connotation at least 65 Fedora repositories, still controlled by Microsoft, still use "master"



  29. Changing the Arrangement While News is a Bit Slow(er)

    I've made it easier for myself to keep abreast of things like IRC channels and networks (incidentally, a day ago Freenode reopened to anonymous logins) and I've improved monitoring of the Web sites, Gemini capsule etc. (this video is unplanned and improvised)



  30. Links 24/11/2021: Alpine Linux 3.15 and Endless OS 4.0 Released

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts