EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

08.12.09

The Patent Trolls and McKool Smith Show Why OOXML and Software Patents Should be Shunned

Posted in Courtroom, Formats, Microsoft, Novell, Office Suites, Open XML, OpenDocument, Patents, Red Hat at 8:52 am by Dr. Roy Schestowitz

Spooky statue

Summary: McKool Smith and i4i may take Microsoft Word off the market — claim

THE SHORT story — for those who have not heard yet — is that Microsoft Word is banned — embargoed if you will (deja vu) — based on a court’s decision which will probably be reversed or mitigated by the time it comes into effect. David Gerard says that it “doesn’t take effect for 60 days, MSFT will certainly get it overturned. but amusing nevertheless!” McKool Smith is the shameless law firm and the so-called ‘victim’ is i4i. Microsoft’s patent dispute with i4i is not new, as it was previously mentioned in:

  1. Microsoft Accused of “Willful and Deliberate” infringement and “Discovery Misconduct” in Another Patent Case
  2. XML Patents, Microsoft Aggression, and ODF Hostility
  3. Microsoft is Again Paying the Huge Price for Wanting Anti-Free Software Laws
  4. Reader Explains “Microsoft Innovation”

Things have escalated somewhat now that McKool Smith, a patent troll litigator whom we mentioned when it attacked a Free software project and also when it attacked Microsoft, succeeds in blocking sales of Microsoft Office.

The national law firm of McKool Smith is announcing a permanent injunction and total damages and interest of more than $290 million against software giant Microsoft Corp. (Nasdaq: MSFT) in a Texas patent infringement lawsuit won by Toronto-based technology provider i4i Inc.

The Order and Permanent Injunction were signed today by Judge Leonard Davis of the U.S. District Court for the Eastern District of Texas, Tyler Division. Today’s ruling follows a May 20, 2009, verdict of $200 million after jurors found that Redmond, Wash.-based Microsoft willfully infringed an i4i patent covering a document system that relies on the XML custom formatting function.

The patent at hand is an XML patent, of which Microsoft has several, as we previously (and more recently) noted in:

Harry McCracken, whom Microsoft gave a nice laptop, writes about this latest development.

In the latest apparent case of the U.S. patent system run amok, Judge Leonard Davis of the U.S. District Court for the Eastern District of Texas issued a permanent injunction on Tuesday preventing Microsoft from selling versions of Word that handle custom XML in the form of the .DOCX, .DOCM, and .XML file formats. Which would mean that Microsoft is now forbidden from selling Word 2003 or Word 2007. And since it also forbids Microsoft from testing such versions of Word, there would seem to be implications for Office 2010 as well.

The Microsoft PR-ish blog from Seattle goes with the dramatic headline “Judge: Microsoft can’t sell Word anymore.”

Judge Leonard Davis, of the U.S. District Court for the Eastern District of Texas, ordered a permanent injunction that “prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML,” according to an announcement by the plaintiff, Toronto-based i4i Inc.

Guess which other formats are impacted by this? Sun has an ODF (XML) plug-in for Microsoft Office and Microsoft has XML patents of its own. It is truly becoming a mess and none of those so-called ‘inventions’ are novel at all. As one person puts it, “Another patent problem: #Microsoft patented #XML-based file formats, which effects both #OOXML and #ODF #OpenOffice”

Ironically enough, Microsoft deserves some of the blame for this lawsuit against it. Microsoft was relentlessly lobbying in favour of software patents. As <No>OOXML puts it:

We may add that while Microsoft always pays lip service to patent reform and patent quality, it effectively obstructed even moderate steps of pragmatic reform in the field of software patenting with massive lobbying investment and an ideological agenda. An ideological motivation you don’t find among all the other players which have a real business. The massive lobbying also applies to colonial attitudes towards patent regimes of third nations in which the American company operates, or the European Union, our main area of operations as the FFII e.V. Ironically Microsoft itself is a favourite target of troll challenges and no one knows how much profits Marshall Phelps actually generates by selling their Microsoft FAT patents. In the spectacular case of TomTom we were told it was a very small amount. Some American critics as Brian Kahin speak of a patent bubble of low value patents but how is it going to burst? When you have a licensing business a good patent is one that hurts. Maybe the Encyclopedia Brittannica is an example, it failed commercially and now became an (unsuccesful) patent enforcement agency against actual market players.

In the recent referral G03/08 about software patentability an European Patent Office case named T 424/03 (Microsoft) was center to the debate. Find the Amicus letters here. Currently you also have a pending referral on Bilski in the US Supreme Court which is more far reaching than software. In the US many examination tests were dismantled such as the machine or transformation box test which opened the flood gates and unbalanced the system. It was reintroduced under the Bilski ruling but appealed at the supreme court. The Bilski test does not rule out software or business method patents but provides means to reduce the pressure within the examination system in later stages.

First you wreck the law, then the trolls wreck you.

[...]

Right now ISO/IEC 29500 (“OOXML”) is patent encumbered and cannot be called an “open standard” according to conventional definitions and looks unusable for the public sector.

It ought to be added that we found the blog of Microsoft’s Amruta Gulanikar, which bears the tag line “Office Interoperability”. Now, watch who is under “Blog Links”; it’s Microsoft employees and the usual lobbyists for Microsoft and OOXML, notably Jesper Lund Stocholm and Alex Brown. The complete list is:

Brian Jones

Dennis Hamilton

Alex Brown

Erika Ehrli

Gray Knowlton

Jesper Lund Stocholm

Stephen Peront

Doug Mahugh

They fail to even make the illusion that anyone except Microsoft (and partners) is accepting OOXML. There are a few exceptions.

In other patent news, the patent troll known as Acacia is still harassing GNU/Linux, based on this new report.

Red Hat, Novell Still Face Interface Patent Claims

Handing down a claim construction that accommodates the plaintiffs, a federal judge has refused to invalidate one of three user interface patents Linux providers Red Hat Inc. and Novell Inc. allegedly infringe.

Software patents. It figures. Is anyone (other than patent lawyers and trolls) actually benefiting from them?

“[Y]ou’re creating a new 20-year monopoly for no good reason.”

David Kappo, Director of the USPTO

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

4 Comments

  1. Jose_X said,

    August 12, 2009 at 9:29 am

    Gravatar

    If software patents aren’t cut down and/or eliminated as a threat to FOSS before FOSS and commercial FOSS companies start suffering noticeably (due to enforcements or significant FUD), I will consider going into the lucrative patent creation business to try and make sure major supporters of software patents (eg, Microsoft and IBM) have a difficult time carrying out their profitable businesses whenever they violate any of my (future) patents.

    Rather than implementing things, I will spend the time as do these patent factories by dreaming up combinations of future uses of computers and electronics and trying to get the most general patents possible. I’ll consider creating free workshops and free online documentation to facilitate everyone else also getting enforceable patents. Even ordinary Joe can spot trends and work on a patent with a few technical individuals to split the profits later.. or help ground the US software industry to a halt.

    Software patents are likely unconstitutional (hinder not promote) and are unethical, but the US courts and Congress apparently aren’t clear on this yet.

    There are many talented FOSS devs that could be making millions to the loss of society and various profitable businesses if they dedicated their time to writing patents.

    Perhaps the contributors to a project that gets shut down because of patent threats should donate future time to writing patents to be used on major players like Microsoft that support software patents. Force Microsoft into a corner: injunction and lose ability to sell Windows and Office missing much interesting functionality (or having to spend billions retooling) or else have them help get the software patents declared unconstitutional. Only a company like Microsoft has enough at stake and enough money to fight your hungry lawyers all the way to the Supreme Court. If Microsoft folds, go after IBM, etc.

    [The funding for the patents will come if you build them. Lawyers will work for you in anticipation of winning settlements and off past winnings.]

    Why is it that writing a quality piece of interesting open source software requires so much more energy, creativity, study, commitment, skill, time, cooperation, etc, than writing a patent that will yield millions in revenues?

    I think the FOSS world is making a tactical mistake by not retooling to becoming patent generation machines instead of open source generating machines. Surely, the world will be better if we diverted our attentions into these monopolies and stopped writing free/free quality software, no?

    Roy Schestowitz Reply:

    There are many talented FOSS devs that could be making millions to the loss of society and various profitable businesses if they dedicated their time to writing patents.

    Perhaps the contributors to a project that gets shut down because of patent threats…

    There is an actual example of this, but it kept silent about it. Software patents have already shut down more FOSS projects.

  2. Jose_X said,

    August 12, 2009 at 9:44 am

    Gravatar

    How about a project to dissect Microsoft patents with the intent to patent as many interesting extensions of their “inventions”? If we spend enough time patenting in and around their playpen (plus whatever other good ideas come up), it will almost assure some good stuff will get patented. This way we can help put an end to, eg, dotnet, by forcing injunctions and or high royalties. This will lead to back-backlash and the software industry will grind to a halt unless the US Congress/Courts stop the madness.

    Of course, Microsoft is already patenting around their inventions like mad so that they own the cards and not someone else. That’s what IBM and everyone does when the build patents for “defensive” purposes. Of course, defensive patents turn offensive whenever you need some help in the market place or need to defend your turf or even monopolies (and associated high revenues). As if these large companies weren’t already powerful enough, they use the patent cards as well as necessary to gain more advantages over smaller competitors.

    Roy Schestowitz Reply:

    How about a project to dissect Microsoft patents with the intent to patent as many interesting extensions of their “inventions”?

    There’s something similar.

    As if these large companies weren’t already powerful enough, they use the patent cards as well as necessary to gain more advantages over smaller competitors.

    IBM — like Novell — uses software patents to market even its ‘own’ Linux.

What Else is New


  1. Should Anybody Dictate the Free Software Movement?

    "There's a great myth, as Jagadees reminds us, that advocacy doesn't produce software. That myth is corporate, and proper advocacy has at times produced the greatest software in the history of computing. If we want great Free software to continue, we need advocacy more than ever."



  2. Links 18/10/2019: More KDE Events and OpenBSD 6.6

    Links for the day



  3. We Don't Know Who Will Run the Free Software Foundation, But We Know Who Will Run the GNU Project

    Software Freedom is under a heavy and perhaps unprecedented attack; some people out there are paid by the attackers to celebrate this attack and defame people (cheering for corporate takeover under the blanket of “Open Source”), but the founder of the Free software movement remains alive, well, and very much active



  4. New EPO Meme: Who Wants to Make Billions From a 'Public' Monopoly?

    What was supposed to be a cash-balanced patent office became a money-making monster that fakes ‘crises’ to attack hard-working examiners



  5. EmacsConf Without Richard Stallman

    Now that emacs is being 'rebranded' this kind of meme seems apt



  6. IRC Proceedings: Thursday, October 17, 2019

    IRC logs for Thursday, October 17, 2019



  7. Guest Article: In the Absence of Richard Stallman OEM Source Software ('Open Source') is Trying to Hijack Even Emacs

    "Now they have to create some fictional history. No need to worry."



  8. Guest Article: Techies Should Not Dictate the Free Software Movement

    "We should start a second phase of the Free software movement that's making good software and putting users at the center."



  9. Links 17/10/2019: Ubuntu Turns 15, New Codename Revealed, Ubuntu 19.10 is Out

    Links for the day



  10. Free as in Free Speech (Restrictions May Apply)

    When limits of speech are not safety-related rules but political correctness or conformism



  11. There Won't be Patent Justice Until Patent Trolling Becomes Completely and Totally Extinct

    SLAPP-like behaviour and extortion/blackmail tactics using patent monopolies are a stain on the patent system; it's time to adopt measures to stop these things once and for all, bearing in mind they're inherently antithetical to the goal/s of the patent system and therefore discourage public support for this whole system



  12. EPO Staff Union and Staff Representatives Ought to Demand EPO Stops Bullying Publishers and Censoring Their Sites

    An often neglected if not forgotten aspect of EPO tyranny is the war on information itself; EPO management continues to show hostility towards journalism and disdain for true information



  13. Bribes, Lies, Fundamental Violations of the Law and Cover-Up: This is Today's European Patent Office

    It has gotten extremely difficult to hold the conspirators accountable for turning Europe’s patent office into a ‘printing machine’ of the litigation industry and amassing vast amounts of money (to be passed to private, for-profit companies)



  14. The Free Software Foundation (FSF) Lost Almost Half (3 Out of 8) Board Members in Only One Month

    As the old saying goes, a picture (or screenshot) is worth a thousand words



  15. IRC Proceedings: Wednesday, October 16, 2019

    IRC logs for Wednesday, October 16, 2019



  16. Startpage and System1 Abuse Your Privacy Under the Guise of 'Privacy One Group'

    Startpage has sold out and may have also sold data it retained about its users to a privacy-hostile company whose entire business model is surveillance



  17. Links 16/10/2019: Halo Privacy, Ubuntu Release Imminent

    Links for the day



  18. IRC Proceedings: Tuesday, October 15, 2019

    IRC logs for Tuesday, October 15, 2019



  19. No, Microsoft is Not an 'Open Source Company' But a Lying Company

    The world’s biggest proprietary software companies want to be seen as “open”; what else is new?



  20. Meme: Setting the Record Straight

    Stallman never defended Epstein. He had called him “Serial Rapist”. It’s Bill Gates who defended Epstein and possibly participated in the same acts.



  21. EPO Staff Resolution Against Neoliberal Policies of António Campinos

    “After Campinos announced 17 financial measures,” a source told us, “staff gathered at multiple sites last week for general assemblies. The meeting halls were crowded. The resolution was passed unanimously and without abstentions.”



  22. Satya Nadella is a Distraction From Microsoft's Real Leadership and Abuses

    "I’m merely wondering if his image and accolades that we’re incessantly bombarded with by the press actually reflect his accomplishments or if they’re being aggrandized."



  23. Raw: EPO Comes Under Fire for Lowering Patent Quality Under the Orwellian Guise of “Collaborative Quality Improvements” (CQI)

    Stephen Rowan, the President’s (António Campinos) chosen VP who promotes the notorious “Collaborative Quality Improvements” (CQI) initiative/pilot, faces heat from the CSC, the Central Staff Committee of the EPO



  24. Making The Most of The Fourth Age of Free Software

    "For better or for worse, we can be certain the Free Software Foundation will never be the same."



  25. FSF is Not for Free Speech Anymore

    The FSF gave orders to silence people



  26. Links 16/10/2019: Plasma 5.17.0, Project Trident Moves to GNU/Linux, NuTyX 11.2

    Links for the day



  27. ...So This GNU/Linux User Goes to a Pub With Swapnil and Jim

    It's hard to promote GNU/Linux when you don't even use it



  28. How to THRIVE, in Uncertain Times for Free Software

    "The guidelines are barely about conduct anyway, they are more about process guidelines for "what to do with your autonomy" in the context of a larger group where participation is completely voluntary and each individual consents to participate."



  29. When They Run Out of Things to Patent They'll Patent Nature Itself...

    The absolutely ridiculous patent bar (ridiculously low) at today’s EPO means that legal certainty associated with European Patents is at an all-time low; patents get granted for the sake of granting more patents each year



  30. EPO Boards of Appeal Need Courage and Structural Disruption to Halt Software Patents in Europe

    Forces or lobbyists for software patents try to come up with tricks and lies by which to cheat the EPC and enshrine illegal software patents; sadly, moreover, EPO judges lack the necessary independence by which to shape caselaw against such practices


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