Microsoft, Who Supports Software Patents, Now Asks Supreme Court To Help It Against Patent Holder

from the live-by-the-patent... dept

Mon, Aug 30th 2010 9:45pm — Mike Masnick

Microsoft, who has become a strongly pro-software patent company (despite Bill Gates' old claim that patents would have harmed the software industry in the early days), is finding out (yet again) that such a stance can come back to bite you. We've already covered the somewhat ridiculous lawsuit that Microsoft faced from a small Canadian company, i4i, who claimed a patent (5,787,449) on an XML editing feature. Microsoft lost the lawsuit, and the court issued an injunction against Microsoft and claimed that the feature was worth an astounding $98 per copy where the feature was used. Microsoft appealed the case to CAFC who upheld the lower court ruling. Microsoft then appealed to have the entire CAFC rehear the case, and that got rejected. The only move left is to appeal to the Supreme Court that's exactly what Microsoft has now done.

To be honest, I can't see the Supreme Court actually taking this case. Unlike some of the other patent cases that the Supremes have taken recently, there doesn't seem to be any big constitutional questions here. It's just a silly patent that Microsoft is on the hook for infringing. Perhaps rather than fighting this individual battle, Microsoft will finally realize that it's stance on patents is only going to do it more harm in the long run.

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Filed Under: editing, software patents, xml
Companies: i4i, microsoft

27 Comments

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darryl, 30 Aug 2010 @ 10:23pm

Its called "Playing by the rules", ALL the rules and laws.
play by the rules and you have the accept the good with the bad, and the bad with the good.

Thats what playing by the rules is all about, the rules FOR and AGAINST apply to all equally. Sometimes you win, and sometimes you dont.

But at least your 'in the game'.

Ofcourse, if you dont like the rules, dont play the game.

(there is no,,, "if you dont like the rules, play the game and cheat).

The rules, are the law, therefore 'cheat = crime'.
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Anonymous Coward, 30 Aug 2010 @ 10:48pm

Re: Its called "Playing by the rules", ALL the rules and laws.
"Sometimes you win, and sometimes you dont."

and the lawyers always win either way of course.
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Anonymous Coward, 31 Aug 2010 @ 12:26am

saw this yesterday:

Pirates Of Silicon Valley
http://www.imdb.com/title/tt0168122/
(worth renting)

i have to admit that i dont know how much is true and how much isn't, but since the movie is out and neither Steve jobs, nor bill gates nor Paul Allen managed to stop it makes me think its the truth.

if software patents existed in the earlier days then neither Microsoft nor Apple would be here today.
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Lawrence D'Oliveiro, 31 Aug 2010 @ 12:41am

Re: Its called "Playing by the rules", ALL the rules and laws.
If that’s true, why not just accept the rules, why keep appealing?
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The Groove Tiger (profile), 31 Aug 2010 @ 12:42am

Re: Its called "Playing by the rules", ALL the rules and laws.
Yes, whatever you do, never try to change the rules! Or the game!

The rules are forever! Trying to change them is evil! You either play by the rules, or you don't play the game! You don't like the rules of living? Then stop living! Yeah!
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Richard (profile), 31 Aug 2010 @ 1:42am

Re: Its called "Playing by the rules", ALL the rules and laws.
The rules, are the law, therefore 'cheat = crime'.
But what if the other guy cheats but the referee doesn't see it?
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Elder Geek, 31 Aug 2010 @ 3:02am

Hoisted upon his own petard
The problem for Microsoft here is the dollar amount. That is $98 for every copy of office. For retail copies that sell at $500.00. For OEM copies that sell at $200.00, for educational copies that sell at $15.00. This eats up most of the profits from selling Microsoft Office.

Since Microsoft has worked so hard on building a patent portfolio that it can use to extract money from or destroy other companies, it is nice to see them on the other end of the stick.

Hopefully there is a point where this hurts them so much that they will ask congress to do away with software patents.
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paperbag (profile), 31 Aug 2010 @ 4:01am

Re: Re: Its called "Playing by the rules", ALL the rules and laws.
What if the other guy cheats and paid lots of money indirectly to the referee to ensure the positive outcome?
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paperbag (profile), 31 Aug 2010 @ 4:02am

Re:
Release Date:
20 June 1999 (USA)

It was a good movie for its time.
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Richard (profile), 31 Aug 2010 @ 4:31am

Re: Re: Re: Its called "Playing by the rules", ALL the rules and laws.
What if the other guy cheats and paid lots of money indirectly to the referee to ensure the positive outcome?

That was of course the reason why he "didn't see" it.
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Anonymous Coward, 31 Aug 2010 @ 4:52am

Re: Its called "Playing by the rules", ALL the rules and laws.
Agreed when you break social rules you get stomped by the public.

Cheating using "the law" as a shield and excuse to be a dick will not end well for anyone.
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Anonymous Coward, 31 Aug 2010 @ 5:30am

whats that rolling stones tune?
you cant always get what you want......
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Anonymous Coward, 31 Aug 2010 @ 5:48am

Re: Re: Re: Its called "Playing by the rules", ALL the rules and laws.
Here a prime example of that horrible type of conduct.

http://www.zeropaid.com/news/90455/don-henley-eliminate-or-drastically-limit-safe-harbor -provision/

Don forgotten Henley thinks is to hard to police his "property" and wants to abolish others rights, to make others do the work that should be his, after all the whole concept of property is based on the assumption that people can defend their property alone if necessary.

Now those muppets want to make everybody responsible. They don't have my sympathy.
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PrometheeFeu (profile), 31 Aug 2010 @ 6:44am

Re: Its called "Playing by the rules", ALL the rules and laws.
thankfully, there is also changing the rules as an option. Patent law is not written in stone.
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PrometheeFeu (profile), 31 Aug 2010 @ 6:51am

Re: Its called "Playing by the rules", ALL the rules and laws.
The rules, are the law, therefore 'cheat = crime'.

Oh yeah, and that equation does not hold. Parking violations are not crimes. Opening a restaurant without a license isn't a crime. And patent infringements which are not even prosecuted by the state but instead settled as civil lawsuits are most definitely not crimes. Infringing a patent falls in the same bucket as breach of contract and such. Nothing to do with crime.
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Anonymous Coward, 31 Aug 2010 @ 7:11am

Stance doesn't matter
Perhaps rather than fighting this individual battle, Microsoft will finally realize that it's [sic] stance on patents is only going to do it more harm in the long run.

Microsoft's stance isn't hurting it at all. It's not like they wouldn't have been sued if they were against software patents.
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Anonymous Coward, 31 Aug 2010 @ 7:34am

Actually this is a poster case...
... for patents. If you read the history, i4i developed their product, and Microsoft approached them to get a "deeper understanding" of it. A reasonable assumption is they were interested in buying or licensing the technology. But then Microsoft said they weren't interested, and showed them the door, and surprise, surprise! the next release of Word has the exact same feature!

Heck, it's all there at one of your favorite websites: http://en.swpat.org/wiki/I4i_v._Microsoft_(2009,_USA)

Sure, i4i could have tried to compete with Microsoft (hah!), but when your product adds a feature to MS Word, and MS Word starts offering the same feature for the same price with the added advantage of being better integrated, how do you even start to compete? "Out-innovate"? "First mover advantage"? How much can you "innovate" and "move" in a freaking XML editor?

Without a patent to protect their product, i4i would have been just another case of "embrace, extend, extinguish".

But then, Techdirt has to put an anti-patent spin on everything. Else how will it get the eyeballs of the FOSS/anti-copyright crowd?
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nasch (profile), 31 Aug 2010 @ 8:45am

Re: Actually this is a poster case...
It could very well be just as legit as you say, and I certainly wouldn't doubt MS doing exactly what you describe. However, to suggest that this feature alone is worth $98 of the price of Office is ludicrous. I would be suprised if 1% of users even know it exists. I know I didn't until this lawsuit, and I work with both MS Word and XML regularly. Even if this a punitive damage amount (which I think it's not) it still seems excessive.
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Anonymous Coward, 31 Aug 2010 @ 8:47am

Microsoft built their company ripping off small garage developers of their ideas and code. Hell my own company even contributed an algorithm or two. A couple of times they got caught because they ripped off someone small who got big. But most of the time they get away with it.
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Anonymous Coward, 31 Aug 2010 @ 9:02am

Why is it that when juries, district court judges, and appellate court judges act in favor a a right holder's claim they seem to be uniformly criticised here are not knowing the law and lacking in common sense, but when these same groups deny a right holder's claim and find in favor of a defendant they are then deemed to be imbued with laudatory insignt?

This article seems to be little more than a continuation of the anti-patent bias that permeates this site, and this is a shame because it does nothing to assist readers in understanding the actual case and why it came out the way it did. Large per copy damages? Evidence presented to the court, coupled with evidence of wilfull infringement. Injunction? eBay is more nuanced that the article here would have readers believe. CAFC? They analyzed the proceedings below and applied longstanding precedent that supported the trial judge's decision. To say this manifests a lack of common sense is wholly unwarranted.
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Anonymous Coward, 31 Aug 2010 @ 9:12am

BTW, I am curious to learn the extrinsic evidence upon which you rely to call this a "silly patent".
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Steve R. (profile), 31 Aug 2010 @ 10:17am

Re: Its called "Playing by the rules", ALL the rules and laws.
Incorrect statement -> "Of course, if you don't like the rules, don't play the game.. You overlook the fact that private industry now goes to the Congressional supermarket to buy favorable legislation. Look at the changes to copyright law which has criminalized certain activities, extended the scope and length of copyright. The rule-of-law in the US is rapidly fading.
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Mike Masnick (profile), 31 Aug 2010 @ 11:00am

Re: Actually this is a poster case...
... for patents. If you read the history, i4i developed their product, and Microsoft approached them to get a "deeper understanding" of it. A reasonable assumption is they were interested in buying or licensing the technology. But then Microsoft said they weren't interested, and showed them the door, and surprise, surprise! the next release of Word has the exact same feature!

Perhaps because the idea of separating out the XML for editing was an obvious idea that was already being worked on, and when Microsoft realized that they already were doing it, it seemed silly to talk to this company, no?

Doesn't seem like a good argument for patents at all. Seems like a terrible one.

Heck, it's all there at one of your favorite websites: http://en.swpat.org/wiki/I4i_v._Microsoft_(2009,_USA)

Honestly, I've never heard of that site before in my life. Why do you think it's "one of my favorites"?

Sure, i4i could have tried to compete with Microsoft (hah!)

Why is that so funny? Lots of companies competed successfully with Microsoft.

but when your product adds a feature to MS Word, and MS Word starts offering the same feature for the same price with the added advantage of being better integrated, how do you even start to compete?

Um. Perhaps that shows that i4i didn't create a business at all, but a minor feature. In which case they deserve to go out of business.

"Out-innovate"? "First mover advantage"? How much can you "innovate" and "move" in a freaking XML editor?

So we should prop up this one company that made something that even you admit is not a business?!?

Yikes.

Without a patent to protect their product, i4i would have been just another case of "embrace, extend, extinguish".

It's own damn fault for not building a business, and only building a feature. Welcome to capitalism.

But then, Techdirt has to put an anti-patent spin on everything. Else how will it get the eyeballs of the FOSS/anti-copyright crowd?

I love this line or argument. As if there's some giant rush of traffic for this sorta stuff. Hint: these posts don't get any traffic at all. I just think it's important.
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Anonymous Coward, 31 Aug 2010 @ 5:49pm

Re: Re: Actually this is a poster case...
Perhaps because the idea of separating out the XML for editing was an obvious idea that was already being worked on, and when Microsoft realized that they already were doing it, it seemed silly to talk to this company, no?

The timeline makes that unlikely. The patent was filed in 1994. CustomXML (the offending feature) was released in Word 2003. Not really in the same time frame, I think. Apparently, MS talked to i4i a bunch about the technology in question, and of course, dirty laundry in the lawsuit included incriminating emails that ruled an independent invention defense out. In fact, that is what led to the really high damages.

Also, everything appears obvious in retrospect, but I honestly don't think the it was in 1994. Did they even have computers back then?

Um. Perhaps that shows that i4i didn't create a business at all, but a minor feature. In which case they deserve to go out of business.

Well, they found a gap in existing products and made a niche product out of it, that was actually selling copies. It may be a "minor feature", but what did you expect them to do? Write a whole word processing product to compete with MS Word on the basis of that minor feature? They saw an opportunity and they took it.

So we should prop up this one company that made something that even you admit is not a business?!?

Like I said, they found a niche and were making money out of it. Being a niche product does not make it "not a business". If they were making something people found useful and paid for, no matter how minor *you* think it is, it is still a business.

It's own damn fault for not building a business, and only building a feature. Welcome to capitalism.

They say monopolies are bad for a free markets. And yet here we have MS Word and its de facto monopoly on the word processor market. Fighting a de facto monopoly with a government-granted monopoly seems fair to me. With all kinds of unfair business practices, I think capitalism could use some help from the government.

Honestly, I've never heard of that site before in my life. Why do you think it's "one of my favorites"?

It was just a guess because it's pretty anti-software patent in nature, didn't really mean anything by it.

I love this line or argument. As if there's some giant rush of traffic for this sorta stuff. Hint: these posts don't get any traffic at all. I just think it's important.

I agree, that was uncalled for and detracts from the point. I'd rather not have written it.
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Anonymous Coward, 31 Aug 2010 @ 5:51pm

Re: Re: Re: Actually this is a poster case...
...that ruled an independent invention defense out.

Of course, not that there is such a thing, legally... poor choice of words on my part.
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Anonymous Coward, 31 Aug 2010 @ 7:51pm

Re:
Oh no guys, opinions!

RUN!!!
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Doug, 31 Aug 2010 @ 11:30pm

Who is this "Microsoft" of whom you speak?
I don't think "Microsoft" (taken as a whole) likes patents. Microsoft's lawyers (and most other lawyers) seem to like patents, but I'm pretty sure that Microsoft's balance sheet has been hurt far more than it has been helped by patent litigation. And if you took a poll of Microsoft's employees or stockholders, you'd probably find the same thing.

Microsoft doesn't make the rules regarding patents, and if it had its way, the rules would probably be changed quite substantially. But whether or not "Microsoft" likes the rules, it is still going to try to make the best of any situation it finds. Sometimes that means trying to license patents it owns. Sometimes that means trying to defend against patent claims from others. At least Microsoft isn't a troll.

If you're playing a game, nobody cares whether you like or dislike a rule. You're expected to play by the rule regardless. You're expected to take advantage of that rule when possible, and you're expected to live with the consequences when that rule works against you. Taking advantage of the rule doesn't mean you agree with it, and having the rule work against you doesn't mean you disagree with it. It's just the way the system works.

As it stands, software patents are more-or-less what Microsoft has to deal with (or it could give up and stop doing business). Since this is the way the world happens to work right now, Microsoft tries to make the best of its situation. It tries to license its patents where possible (because the law allows it to do so) and it tries to defend itself from patent litigation where possible (because the law allows it to do so). Microsoft is trying to play with the cards it has been dealt. I'm not sure I understand why that's so wrong.
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