05.11.09

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

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2009/05/11/ms-patent-threat-to-odf/

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

A Single Comment

  1. The Mad Hatter said,

    May 11, 2009 at 10:01 am

    Gravatar

    Microsoft? Good Faith?

    Yeah, right.

What Else is New


  1. The EPO's War on Justice and Assault on the Law -- Part 5: Battistelli's “Swedish Chef”

    The EPO's 'courts' are controlled by the people whom they're supposed to judge on; this has been the case for at least half a decade



  2. Links 14/5/2021: KDE Plasma 5.22 Beta and GNOME 40 in Gentoo

    Links for the day



  3. Audio: “Unjust Computing Clamps Down” by Richard Stallman

    The FSF has finally uploaded the LibrePlanet talk of Richard Stallman



  4. Links 13/5/2021: KDE Gear 21.04.1 and LibreOffice 7.0.6

    Links for the day



  5. The EPO's War on Justice and Assault on the Law -- Part 4: The President of the Boards of Appeal

    A deeper look into the ‘sausage factory’ that is EPO tribunals certainly helps us understand the inherent bias of many decisions, including a recent decision on European software patents like a controversial simulation patent



  6. Judging the Judges

    Today we shall take a closer look at Carl Josefsson, a person who shall become a figure of interest if he sends EPO courts to the United States in clear violation of the EPC (looking to rubber-stamp an unlawful decision already made before this case even started)



  7. When EU Authorities Tell You to Complain to the EPO Itself About EPO Privacy Violations...

    “Kafkaesque” at the EPO; Kafka could do a whole novel about the flirtations with or affairs of ‘justice’ at the EPO



  8. The Need for Reliable Governance at Freenode

    Why the current and high-profile (albeit somewhat covert) owner of the network, who seems to care about Free software (it has made him very wealthy), should put the whole thing in reliable hands and not attempt to 'monetise' it in any way



  9. IRC Proceedings: Wednesday, May 12, 2021

    IRC logs for Wednesday, May 12, 2021



  10. Andrew Lee of Private Internet Access/London Trust Media Increasingly Owns and Controls Freenode (Updatedx2)

    The details about Freenode ownership and control are explained in a resignation letter urging users to move to another network



  11. [Meme] eBPF is Not Microsoft's, But It's Certainly Googlebombed by Microsoft

    eBPF isn't Microsoft's. But sites that work closely with Microsoft keep mentioning that term as if Microsoft created it and champions it (typical tactics).



  12. Links 13/5/2021: OpenSUSE Leap 15.3 on Finer Hardware, AMI Dabbling in Free Firmware

    Links for the day



  13. The EPO's War on Justice and Assault on the Law -- Part 3: The Current Line-up

    The composition of the Enlarged Board for case no. G 1/21



  14. System76’s First Keyboard Packs in Plenty of Surprises

    Putting the genie back in the bottle is hard, and moreover the corrective post from Joey Sneddon may cause a bit of a 'Streisand Effect'



  15. Links 12/5/2021: HAProxy Data Plane API 2.3 and Mousepad 0.5.5

    Links for the day



  16. IBM is Destroying Red Hat, Squeezing Red Hat's Work for Cash, Laying Off Staff, and Asking Staff to Resign

    Layoffs are not a new thing at IBM (hardly so in the past couple of decades or more), but they're oversensitive about the Red Hat agenda



  17. [Meme] Longing for the Original IP Kat...

    It would be nice to see more posts critical of injustice at the EPO, as we've just noted



  18. The EPO's War on Justice and Assault on the Law -- Part 2: Just Another Pro Forma Rubber-Stamping Exercise?

    Half a decade after Benoît Battistelli ‘kidnapped’ and then defamed judges (it started in 2014) António Campinos has done nothing to restore lawfulness at the EPO, as controversial referral case G 1/21 shows; in fact, they recently approved European software patents after pressure from Campinos himself



  19. Why I'm Using Just a Landline and Recalling My Richard Stallman (RMS) Interview on Working Locally or How the Signal Processor in Phones is a De Facto Back Door

    A longer-than-expected rant about what mobile phones have turned into and a look back at (or listen to) what Richard Stallman (RMS) told me way back in 2013



  20. The European Campinos Award

    The campinos (peasants) of Europe shall gather around for another ceremony championing farmers and nurses... or not



  21. Personal Thoughts About the EPO 'Kangaroo Court' Scandal

    Some unscripted and unedited thoughts about the current EPO scandal/series, which shows intervention such as stacking by António Campinos, continuing the tradition of Benoît Battistelli with his attacks on justice itself



  22. Doing Justice by Reporting Injustice

    Europe's second-largest institution, helped by Europe's largest, is engaging in a massive attack on the very concept of the Rule of Law and incredibly enough the so-called 'press' (or 'media') doesn't report on it



  23. IRC Proceedings: Tuesday, May 11, 2021

    IRC logs for Tuesday, May 11, 2021



  24. Links 12/5/2021: New Audacity and Musescore Owner Named, Microsoft May Lose "JEDI" (Trump's 'Bailout Package')

    Links for the day



  25. The EPO's War on Justice and Assault on the Law -- Part 1: Rumours of a Kangaroo Court at EPOnia

    EPO's President Benoît Battistelli viciously attacked judges and slandered judges; António Campinos adopts a more 'soft power' approach, but nevertheless the impact is the same



  26. Bill Gates Exposed

    While publishers like ZDNet worked hard (on Microsoft's budget) to distract us from real scandals many nefarious things were happening; are we witnessing the fall of Gates?



  27. Welcome to ZDNet's 'Linux' Section...

    ZDNet, which defamed RMS to help distract from Bill Gates scandals, is doing what the sponsors (IBM, Microsoft, Linux Foundation) pay for



  28. Europe's Second-Largest Institution, the EPO, is Partly Based in the United States

    The EPO has outsourced its operations, including its 'courts', to the United States; this seems to be the so-called 'New Normal'



  29. You Look for Linux News and Instead It's Microsoft Noise and Openwashing

    Imagine trying to go about doing your own 'business', only to be confronted by paid-for plugs (sponsored) by the people trying to undercut/undermine your business; welcome to "Linux" in 2021



  30. Links 11/5/2021: Maui 1.2.2 and Tor Releases

    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