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Reader's Article: The Microsoft Patent Threat to ODF

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:





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.

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