Tom Petrocelli's take on technology. Tom is the author of the book "Data Protection and Information Lifecycle Management" and a natural technology curmudgeon. This blog represents only my own views and not those of my employer, Enterprise Strategy Group. Frankly, mine are more amusing.

Friday, August 14, 2009

More on the Microsoft Word Patent Infringement

I am truly fascinated by the Microsoft-i4i patent infringement case. What's not to love. A small company takes on one of the biggest money makers from one of the biggest companies and wins! Today, Groklaw ( published links to the court documents along with some commentary. It's really good stuff.

As I have (repeatedly) mentioned before, I'm not a lawyer. I'm a technologist and business person. Some of the arguments presented in the documents are technical legal arguments. I won't even begin to comment on those.

I also won't comment on the whole idea of software patents. I'll let the folks at Groklaw do that. In this case it really doesn't matter because it's not what the case is about. The core issue is whether Microsoft should have known better and done something different before adopting OpenXML.

What caught my attention immediately was how the court got the subtle technical arguments presented to it. Clearly, this is not a case of some judge living in the DOS age. Despite Microsoft's protests to the contrary, the court understood the technical arguments and simply didn't agree with Microsoft. Too bad for the boys in Redmond – someone found a judge with the geek gene.

The opinion goes even further and says that there is no evidence that the jury didn't get it either. In a way, the court says that unless you can prove that the jury is stupid, you shouldn't assume they are. Truth be told, the technical aspects are not that hard to understand. Despite all kinds of obfuscation, it appears (at least to the judge) that the jury understood the issues well enough to decide rationally. As normal people become more sophisticated about software and computers, the “ jury is a bunch of technology dolts” argument will be harder to make.

Here are a few additional thoughts based on the court documents:

  1. The court understood that a metacode was like a programming instruction designed to manipulate content for display. The definition it used was “an individual instruction which controls the interpretation of the content of the data.” This is dead on. A file of codes mapped to the content is the metacode map called out in the patent claims. I do have to wonder if this definition could be applied to other types of instruction-to-content mapping schemes like CSS. However, the patent is pretty narrow (which is probably why it was defensible). Further study is required.

  2. The Finisar vs. DirectTV ruling popped up. The short form of Finisar is that if you sell a component of something that is important to the product and infringes, the whole darn thing infringes. You can't buy an infringing LCD component, put it in a TV and say “TV's aren't patentable!” Sorry. Doesn't work that way. It was used in legal arguments around contributory infringement. Finisar is something to watch out for when you buy components. If you put something in that infringes on a patent you might be hit over the head with it, even if you get it from someone else. Know the IP situation at your vendors!

  3. What is even better is that i4i's claim to infringement was proven, in part, by a Microsoft email! An email from an employee that indicated they knew they were infringing. From the court's opinion:
    i4i even presented an internal Microsoft email from January of 2003 containing i4i’s product name, the patent number, and a statement from a Microsoft employee that i4i’s technology would be made “obsolete” by the accused WORD product (which admittedly added XML functionality to the previous version of Microsoft’s WORD product).”

    It almost seems like a joke that Microsoft, who sells products to manage email for eDiscovery, could get hit over the head with a smoking gun email. Probably created in Outlook and sent from Exchange. For this alone, Microsoft should be embarrassed.

  4. I love the arguments about what a data structure is. It was almost Clintonesque, on the order of “depends what 'is' is.” Even Microsoft's own expert had to concede that their own previous arguments support the i4i definitions. And you wonder why the jury didn't believe Microsoft. That and the email maybe.

  5. Obviousness was obviously argued. Microsoft based it's obviousness argument on the inventors' own previous software. The inventors themselves disputed this and apparently the jury believed them. Again, who are you going to believe? They guys who invented it in the first place or the alleged thieves? Discuss amongst yourselves.

  6. At one point, Microsoft must have argued that since the USPTO was willing to reexamine the patent, that shows that it could be invalid. I like that one a lot. The judge, not so much. The court rightly points out that looking something over a second time is not that same as saying it's invalid.

In the end, reading the court documents provides a picture of a jury and judge who actually understood what the deep issues were. That's encouraging. You hear so much about juries and courts that give enormous awards based on emotion because they don't understand business, technology, medicine, or science. That does not appear to be the case here. Big message here – don't rely on stupid juries. They aren't so stupid.

A couple of other takeaways. One, even mighty Microsoft can be hit in the head with an email. Get control of that now. This is an example where someone has to train folks not to write this type of email in the first place. I'm still chuckling over this one.

Second, take software patents seriously. It is clear that Microsoft knew that this patent existed. They just assumed they could get away with ignoring it or beat i4i into submission. Such arrogance should not be tolerated in any company. All of this unpleasantness could have been averted. I bet Microsoft could have bought out i4i for much less than the litigation is costing them.

And finally, whether you like or dislike software patents, this is an argument in favor of them. i4i, a real company and not a patent troll, would have had their technology stolen from them without the protection of the patent. The system worked and protected the small inventor against the giant corporation. Huzzah for patents!

I promised I wouldn't comment on software patents, didn't I? Sorry about that but I couldn't resist.

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