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The i4i v. Microsoft Orders and Permanent Injunction - Updated
Wednesday, August 12 2009 @ 02:41 PM EDT

I have the court documents for you in the i4i v. Microsoft case, the judgment, the permanent injunction, and the memorandum and order, which explains the legal reasoning in support of the order. I also got for you the original complaint by i4i, Microsoft's answer with counterclaim, and i4i's reply to the counterclaim, so you can understand what it was all about. The law firm that won has put out a press release. Microsoft, of course, will appeal. It has 60 days to do so.

You probably think I am delighted. I am not. I hate software patents. And this is precisely why. It is karmic that this happened to Microsoft, who bullies Linux with patent threats and just got an XML patent of its own on August 4th that could, presumably, be used against the entire market. How stupid do we have to be to grant patents on software? On software *standards*? This is what happens. Now do you see it?

FOSS has been taking the lead in trying to educate the world that patents are toxic for software. They disrupt and they block innovation. Software and patents need to get a divorce. You might like to read Red Hat's amicus brief that it submitted in the Bilski case to see why software patents are particularly destructive to the FOSS development model.

As for Microsoft's recent effort to define "open standards" to, as Dana Blankenhorn describes it, "mandate standards bodies to consider patented, protected, proprietary technology on a par with truly open source offerings", what has just happened to the XML standard gives what I consider the absolutely final and complete answer to such a specious argument. Ladies and gentlemen of the jury, I present Exhibit A. It's not open if a judge can shut it down. Or a vendor. Is that hard?

Here's the docket entry:

08/11/2009 - 412 - MEMORANDUM OPINION AND ORDER granting in part 346 Motion for enhanced damages and attorneys' fees; granting in part 364 Sealed Patent Motion for permanent injunction; granting in part 349 Sealed Patent Motion for permanent injunction; granting 350 Sealed Patent Motion for post verdict damages, pre-judgment interest, and post-judgment interest; all other motions are DENIED: denying 345 Motion for Judgment as a Matter of Law; denying 347 Motion for Judgment as a Matter of Law; denying 348 Motion for Judgment as a Matter of Law; denying 351 Motion for New Trial; denying 353 Motion for New Trial; denying 356 Motion for Judgment as a Matter of Law; denying 359 Motion for Judgment as a Matter of Law; denying 370 Sealed Motion to stay injunctive relief; denying 389 Sealed Motion to strike. The permanent injunction provided for herein will be memoralized in a seperate order. Signed by Judge Leonard Davis on 08/11/09. cc:attys 8-11-09 (mll, ) (Entered: 08/11/2009)

08/11/2009 - 413 - PERMANENT INJUNCTION. Signed by Judge Leonard Davis on 08/11/09. cc:attys 8-11-09(mll, ) (Entered: 08/11/2009)

08/11/2009 - 414 FINAL JUDGMENT. Deft Microsoft Corp is found to have unlawfully infringed US Patent 5,787,449, and to have infringed the '449 patent willfully. The '449 patent is valid and enforceable, and Michel Vulpe is found not to have engaged in inequitable conduct with respect to the '449 patent. i4i's damage award is found not barred by laches. The Court awards damages to i4i for Microsoft's infringement of the '449 patent in the amount of $200,000,000. i4i is further awarded enhanced damages of $40,000,000 for Microsoft's willful infringement. i4i is further awarded post-verdict damages of $144,060 per day from 5-21-2009 until the date of this Final Judgment. i4i is further awarded pre-judgment interest of $37,097,032 up to 5-20-2009 and $21,102 per day thereafter until the date of this Final Judgment. i4i is entitled to post-judgment interest for any time period between the entry of this Final Judgment and the date upon which i4i receives payment from Microsoft as ordered herein. Microsoft is enjoined from infringing the '449 Patent. The terms of that injunction are contained in the separate Order of this Court. Except for the Court's more detailed injunction terms as contained in a separate Order, all relief not specifically granted herein is DENIED. All pending motions not previously resolved are DENIED. Signed by Judge Leonard Davis on 08/11/09. cc:attys 8-11-09(mll, ) (Entered: 08/11/2009)

And the extras, the i4i Complaint, the Microsoft Answer and the i4i Reply, all PDFs.

The issue is Custom XML, which is a Microsoft thing. Here's a page that may be disappearing any time now, Doug Mahugh teaching how to use Custom XML and how it's the best thing since white bread. The ODF folks tried to explain that it wasn't a good idea, although for different reasons. ODF uses extensible metadata instead, last I looked. Groklaw member stegu explains it like this:

"Custom XML" refers to content within the file that is of a different XML format, with a separate "custom schema" to describe that content. The problem with such content is that there is no way for a standard to describe how such data should be interpreted, as it is by definition in a "custom format" and can be any kind of data. That is why "custom XML" is not allowed in ODF documents, and that is one of the reasons why OOXML is such a miserable standard.
Well, that's water under the bridge now, that discussion. Patents trump everything. That's what's wrong with them. One thing that wrong with them. But what if Custom XML really was the best thing since white bread? Then the entire US must pay i4i to use it in Word going forward. Or Microsoft has to remove it. Microsoft is rich. It will find a solution. But what if your company isn't so rich? What do you do? People tend to think about patents from the perspective of the owner. Yay! Megabucks! I hit the lottery! But think about it from the perspective of the public. You get to pay more now for Word or you can't use all of its intended functionality. i4i, a Canadian company, cleans up. That's the system. We are talking about a *standard*. Who invented this patent system? It doesn't work with software. Period. Really. Do something, somebody, please.

[ Update: Some interesting reactions in the media I thought would interest you:

  • Steven J. Vaughan-Nichols, ComputerWorld:
    In this case, though, i4i isn't a patent troll. It's a real company that uses its patented technology in real products. It also believes that Microsoft has used its patent in Word. And, what's to the point, they convinced Judge Davis of this....

    Microsoft may very well have to stop sales or disable Open XML, Word's new standard document format. This injunction will not be easy to dodge....

    Now, I am not a lawyer, but I know something about IP law and a fair amount about markup languages since I've been covering them since SGML (Standard Generalized Markup Language), showed up in the late 1980s and before anyone had dreamed up the Web's HTML (Hypertext Markup Language) or XML. To me, the i4i patent reads like a classic, over-reaching patent that covers prior art, which should have prevented it from ever becoming a patent.

  • Preston Gralla, "It's time to banish patent lawyers":
    Like Microsoft or loath it, it's clear that the recent ban against Word being sold because of a potential patent infringement represents everything bad about patent law. The patent that Microsoft is said to infringe upon is one that should never have been issued, and is the kind that hurts the spread of new technologies....

    It's a clear example of a patent that should never have been issued because the technology it describes is far too broad, and covers far too much ground.

  • Dana Blankenhorn, ZDNET, "When will Microsoft admit the truth about software patents?":
    The truth being they are more trouble than they are worth....

    Just file a case to overturn State Street, or limit your lobbying to a call for an end to software patents.

Interesting, no? There's one more headline, but only to debunk, Matt Asay's Microsoft's 'Custom XML' patent suit could put ODF at risk. Actually, it doesn't, so far as I know. Custom XML was one of the reasons ODF folks thought the OOXML "standard" was crudely designed, and that it had no place in a standard. It was a big discussion, and basically, to the extent I understood it, the issue was this: that it was a short cut on Microsoft's part, so it wouldn't have to do things in the usual standard way but could just keep things as they were, dumping a lot of processing stuff into the format, where, ODF folks said, it didn't belong. The very name should tell you why.

The idea of a standard is everyone is on the same page. That contributes to interoperability. Customization, while necessary in practice, needs to stay separate from the standard, or it isn't standardized, if you know what I mean. Now it's customized instead, and that does not lead to ease of interoperability. Custom schemas, the discussion went, don't belong embedded. So ODF has a different way of doing things. Feel free to correct any fine points here, guys, but the bottom line is everyone here is telling me that ODF does not use Custom XML. You'd need a patent lawyer you pay for to tell you more as to any specific liability issues.

As it happens, there's a screenshot on CNET of a technical preview of Microsoft Office 2010, and you'll see Custom XML listed. - end update.]

Here are the terms from the permanent injunction and then the final judgment, as text:

***************************

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

i4i LIMITED PARTNERSHIP and
INFRASTRUCTURES FOR INFORMATION, INC.,

Plaintiffs

vs.

MICROSOFT CORPORATION,

Defendant.

_______________

CASE NO. 6:07CV113
PATENT CASE

_______________

PERMANENT INJUNCTION

In accordance with the Court’s contemporaneously issued memorandum opinion and order in this case, Microsoft Corporation is hereby permanently enjoined from performing the following actions with Microsoft Word 2003, Microsoft Word 2007, and Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007 (collectively “Infringing and Future Word Products”) during the term of U.S. Patent No. 5,787,449:
1. selling, offering to sell, and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML;

2. using any Infringing and Future Word Products to open an XML file containing custom XML;

3. instructing or encouraging anyone to use any Infringing and Future Word Products to open an XML file containing custom XML;

4. providing support or assistance to anyone that describes how to use any infringing and Future Word Products to open an XML file containing custom XML; and

5. testing, demonstrating, or marketing the ability of the Infringing and Future Word Products to open an XML file containing custom XML.

This injunction does not apply to any of the above actions wherein the Infringing and Future Word Products open an XML file as plain text.

This injunction also does not apply to any of the above actions wherein any of the Infringing and Future Word Products, upon opening an XML file, applies a custom tranform that removes all custom XML elements.

This injunction further does not apply to Microsoft providing support or assistance to anyone that describes how to use any of the infringing products to open an XML file containing custom XML if that product was licensed or sold before the date this injunction takes effect.

This injunction becomes effective 60 days from the date of this order.

So ORDERED and SIGNED this 11th day of August, 2009.

[signature]
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

***********************************
***********************************

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

i4i LIMITED PARTNERSHIP and
INFRASTRUCTURES FOR INFORMATION, INC.,

Plaintiffs

vs.

MICROSOFT CORPORATION,

Defendant.

_______________

CASE NO. 6:07CV113
PATENT CASE

_______________

FINAL JUDGMENT

Pursuant to Rule 58 of the Federal Rules of Civil Procedure, consistent with the Court’s contemporaneous Memorandum Opinion and Order, and in consideration of the jury verdict delivered on May 20, 2009 and the entirety of the record available to this Court, the Court ORDERS AND ENTERS FINAL JUDGMENT as follows:
  • Defendant Microsoft Corporation (“Microsoft”) is found to have unlawfully infringed U.S. Patent No. 5,787,449 (the “‘449 patent”).

  • Defendant Microsoft is found to have infringed the ‘449 patent willfully.

  • The ‘449 Patent is valid and enforceable, and Michel Vulpe is found not to have engaged in inequitable conduct with respect to the ‘449 patent.

  • i4i, LP’s and Infrastructures for Information, Inc.’s (collectively “i4i”) damage award is found not barred by laches.

  • The Court awards damages to i4i for Microsoft’s infringement of the ‘449 patent in the amount of $200,000,000.

  • i4i is further awarded enhanced damages of $40,000,000 for Microsoft’s willful infringement.

  • i4i is further awarded post-verdict damages of $144,060 per day from May 21, 2009 until the date of this Final Judgment.

  • i4i is further awarded pre-judgment interest of $37,097,032 up to May 20, 2009 and $21,102 per day thereafter until the date of this Final Judgment.

  • i4i is entitled to post-judgment interest as provided for by 28 U.S.C. § 1961 for any time period between the entry of this Final Judgment and the date upon which i4i receives payment from Microsoft as ordered herein.

  • Microsoft is enjoined from infringing the ‘449 Patent. The terms of that injunction are contained in a separate Order of this Court.

  • Except for the Court’s more detailed injunction terms as contained in a separate Order, all relief not specifically granted herein is DENIED.

  • All pending motions not previously resolved are DENIED.
So ORDERED and SIGNED this 11th day of August, 2009.

[signature]
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE


  


The i4i v. Microsoft Orders and Permanent Injunction - Updated | 361 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The i4i v. Microsoft Orders and Permanent Injunction
Authored by: Anonymous on Wednesday, August 12 2009 @ 03:05 PM EDT
bye Microsoft. Couldn't happen to a bunch of nicer guys.

[ Reply to This | # ]

Corrections Thread
Authored by: hutcheson on Wednesday, August 12 2009 @ 03:05 PM EDT
(please enter all corrections here)

[ Reply to This | # ]

The i4i v. Microsoft Orders and Permanent Injunction
Authored by: rsi on Wednesday, August 12 2009 @ 03:05 PM EDT

Why does a search on the Patent, #5,787,499 show that the patent was withdrawn???

USPO

Free Patents Online

Patent Storm

Am I missing something????

[ Reply to This | # ]

The i4i v. Microsoft Orders and Permanent Injunction
Authored by: Nick_UK on Wednesday, August 12 2009 @ 03:08 PM EDT
To quote -> "How stupid do we have to be to grant patents on
software?"

We are not PJ, but the patent office (and whoever controls it) is... and still
is stupid.

Look at the stuff Microsoft patent, let alone all the rest of the 'wanna control
the Internet tribe'.

Until every one big organisation STOPS doing this, it will be forever a war on
who gets the most patents granted to the most obvious unpatented work (that
somebody else worked on and donated freely in most cases) - let alone standards
(MS especially cannot agree standards anyway).

Nick

[ Reply to This | # ]

Microsoft at the Fork in this Road
Authored by: Boundless on Wednesday, August 12 2009 @ 03:38 PM EDT
So will MS:
a. Appeal this and perhaps learn.
b. Appeal this and warm up their own XML suits.
c. Settle the case and warm up their own XML suits?

They've clearly seen that XML patents can be effectively
used for legal terrorism.
________
IANAL - Barratries not included.

[ Reply to This | # ]

I am delighted
Authored by: tknarr on Wednesday, August 12 2009 @ 03:39 PM EDT

I think it's appropriate to be delighted at this decision, PJ. Software patents won't go away, or even get any significant limits on them, as long as the big guys think that software patents are more to their advantage than not. To get any significant changes, the large players like Microsoft will have to be hurt, and hurt badly, by software patents. So decisions like this are a good thing, they drive the point home to the big players that software patents not only don't give them any advantage, they make them vulnerable to harrassment by entities they can't counter.

[ Reply to This | # ]

What is "custom XML"?
Authored by: hardmath on Wednesday, August 12 2009 @ 03:44 PM EDT
That is the $64M question...

My suspicion is that Microsoft uses the term in a relative sense, meaning the
ability to include non-Schema conforming XML in one of the document files
associated with (say) an Office application. Similar in general terms to
Microsoft's use of "XML data islands" in HTML.

Software patents involving algorithms are threatening enough, but patents on
data representation are worse.

regards, hardmath


---
"Mail-order schools lure fledgling code jockeys with promises of big bucks and
excitement. But a new survey finds hirings are rare." Computerworld, 12/11/95

[ Reply to This | # ]

Deep pockets
Authored by: argee on Wednesday, August 12 2009 @ 03:50 PM EDT
And, keep in mind, that deep pockets like Microsoft, make
for very attractive patent infringement targets.

You sue me for a PI, you might get $10 ...
You sue MS, you might get $400 million.

Who's the better target?

(I am talking actual suits, not patent threats)


---
--
argee

[ Reply to This | # ]

The i4i v. Microsoft Orders and Permanent Injunction
Authored by: Anonymous on Wednesday, August 12 2009 @ 03:53 PM EDT
Personally, I think this may be the best thing that's happened on the Software
Patent front in years.

Because
-it's happening to a company EVERYONE knows.
-It concerns software that almost everyone knows and has used. (It's not just
some obscure memory allocation subroutine in a specific kernel of some OS
nobody's ever heard of)
-It's a clear cut case of a Patent hindering innovation and hurting the public
at large.
-And it's going to cost LOTS of money.

This would be the perfect case that EVERYONE could understand and rally behind
in order to FINALLY reform the patent system and remove all software patents.
It's perfect!

[ Reply to This | # ]

Patent on podcasts, too
Authored by: Anonymous on Wednesday, August 12 2009 @ 04:25 PM EDT

Well, combined with the recent patent on podcasts, I don't know what it's going to take to abolish software patents.

[ Reply to This | # ]

Off Topic
Authored by: Imaginos1892 on Wednesday, August 12 2009 @ 04:28 PM EDT
Discuss off topics here.

[ Reply to This | # ]

Pull an Amazon
Authored by: Anonymous on Wednesday, August 12 2009 @ 04:43 PM EDT
Let's hope Microsft does like Amazon and pulls Word from everyones machine on
the next patch Tuesday. Too bad the judge didn't order a recall.

[ Reply to This | # ]

Apropos
Authored by: JamesK on Wednesday, August 12 2009 @ 04:52 PM EDT
Think about the name of that company... What goes around, comes around. ;-)


---
There are 10 kinds of people, those who understand binary and those who don't.

[ Reply to This | # ]

  • Apropos - Authored by: luvr on Thursday, August 13 2009 @ 08:42 AM EDT
The i4i v. Microsoft Orders and Permanent Injunction
Authored by: Zak3056 on Wednesday, August 12 2009 @ 04:54 PM EDT
Strange as it may seem, Microsoft is actually an ally in the fight against software patents. While they've spread some patent FUD, it's important to note that they haven't actually sued anyone--and the chances of them doing so are near zero. In general, they play the game pretty much the same way an outfit like IBM does: defensively. This is summed up in an (internal) statement by Bill Gates from almost 20 years ago:

If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then the have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Amazingly we havn’t done any patent exchanges tha I am aware of. Amazingly we havn’t found a way to use our licensing position to avoid having our own customers cause patent problems for us. I know these aren’t simply problems but they deserve more effort by both Legal and other groups. For example we need to do a patent exchange with HP as part of our new relationship. In many application categories straighforward thinking ahead allows you to come up with patentable ideas. A recent paper from the League for Programming Freedom (available from the Legal department) explains some problems with the way patents are applied to software.

[ Reply to This | # ]

Microsoft is using Bilski, or so it seems...
Authored by: clemenstimpler on Wednesday, August 12 2009 @ 04:56 PM EDT
From the opinion of the judge:
Finally, Microsoft argues that no reasonable juror could find that Microsoft “sold” or “offered for sale” any product within the scope of § 271(c). Microsoft’s essentially legal argument is that no software could form the basis of contributory infringement because i4i only asserted “process” claims during trial. However, Microsoft failed to raise this argument before the case was submitted to the jury. None of Microsoft’s other objections or requests prior to submission of this case to the jury addressed the issue of whether i4i was required prove the sale of something tangible used in the infringing processes. Furthermore, Microsoft did not object to the Court’s jury instructions on these grounds or request a particular instruction addressing this very specific issue. See Joint Proposed Instructions, Docket No. 320-2 at 30-32. As a result, Microsoft’s JMOL on this issue is waived.
And take this quote from the amicus brief from Redmond in Bilski:
Before software can be contained in and continuously performed by a computer, an actual physical embodiment of the software must be delivered by CD-ROM or some other means capable of interfacing with a computer. See Microsoft Corp. v. AT&T Corp., 127 S. Ct. 1746, 1756 (2007). This is in contrast to the concept of software detached from any physical embodiment or activating medium, which, at that basic level, is merely a set of instructions.... Programming "creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software." Alappat, 33 F.3d at 1545; see also Aristocrat Techs. Australia Pty. Ltd. v. Intl. Game Tech., No. 2007-1419, slip op. at 8 (Fed. Cir. March 28, 2008). The fact that the program software, divorced from the computer or other physical medium, might be termed an algorithm or might incorporate mathematical concepts is irrelevant. All machines operate pursuant to algorithms, and computers are no different. Once the algorithm or software takes physical form as part of a computer (or other machine), Section 101 is satisfied, for "a computer ... is apparatus, not mathematics." Alappat, 33 F.3d at 1545; cf. Microsoft Corp. v. AT&T Corp., 127 S. Ct. at 1750 (machine within scope of patent's apparatus claim is created when computer is programmed with software).
Is it conceivable that they are in the process of absorbing their first lesson in why software patents are evil?

[ Reply to This | # ]

The i4i v. Microsoft Orders and Permanent Injunction
Authored by: Anonymous on Wednesday, August 12 2009 @ 05:06 PM EDT

Has anyone else read this patent yet? I just have and it strikes me as a really dumb idea in the first place.

What it is essentially suggesting is that for a given document you create two files; one contains the actual text of the document, the other the formatting data (what is referred to as the "metacodes"). The formatting data then makes reference to where in the text file each format control applies. If you applied this to something like an XML file, it effectively means that all the tags are in one file and the text is in the other. The tags file then says "apply tag <x> to characters 283 to 389".

...or at least that's how I read it. I really do not see the point of doing it that way since we have XSL stylesheets these days which achieve the same end goal without separating the document into two files.

Quite how this applies to Word or OOXML, I have no idea since being XML the format is an example of the "old" way of doing things that the patent bemoans with the markup and text in the same file. Given that the patent only goes as far as discussing SGML and does not mention XML, where the notion of "custom XML" came from is not really clear. The plantiff's complaints do not, as usual, contain much information about how the patent is supposed to have been infringed by the defendant, and the replies are not too helpful in that respect either.

I think it would take a little more digging to find out what went on in this case to find out how such an odd patent got applied in this way at attain such an absurd result.

[ Reply to This | # ]

Judge
Authored by: kevinsnotalawyer on Wednesday, August 12 2009 @ 05:19 PM EDT

I was perusing the Web a bit because Texas is known for its friendliness to patents. I found this on Wikipedia about Judge Leonard Davis:

He received his undergraduate degree in Mathematics from the University of Texas at Arlington in 1970, and his Master of Management Science Degree from Texas Christian University in 1974. Prior to entering law school he worked as a computer programmer and systems analyst.

Interesting.

---
"I declare you later, if I can. And thus, that received more stupider stupidest
the process in the history of the world rights. And a complete average batch."

[ Reply to This | # ]

  • Signature? - Authored by: Anonymous on Thursday, August 13 2009 @ 03:53 AM EDT
Aren't compiler-compilers prior art!
Authored by: Anonymous on Wednesday, August 12 2009 @ 05:35 PM EDT
Perhaps I'm missing something, but isn't their prior art in how programming
languages are standardised? Maybe someone with more expertise could explain.
My take is below.

Standardised languages are defined in BNF. This defines the format of a
structured document we all knows as "source code". Compiler-compilers
take BNF or similar and generate programs (compilers) that read these documents
in pretty much the way described in the so-called patent. This would suggest
that the idea isn't particularly novel - it just hadn't been applied to the
field of displayable documents at that time.

There's an old phrase "we are all standing on the shoulders of giants"
(I. Newton) that seems apt in describing how novel this patent is.

[ Reply to This | # ]

"People tend to think about patents from the perspective of the owner."
Authored by: billyskank on Wednesday, August 12 2009 @ 07:07 PM EDT
That's because for a long time now, people have been trained to think about
everything only from the point of view of the owner. Ownership rights trump
everything, whether the property is physical or "intellectual," and
the very idea of common ownership (i.e. the public domain or commons) is
suspect. People are very accustomed to thinking from the point of view of the
property owner, without noticing that in the vast majority of cases, that isn't
going to be them.

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Software Problems are not the only problems
Authored by: Anonymous on Wednesday, August 12 2009 @ 07:22 PM EDT
It is entirely too easy to think that software patents is the only place where
this problem of BS patents shows up.

If you take N number of A and M number of B, and mix them together, should you
get a patent for this? This is more or less the same as someone patenting NaCl
(common table salt).

If one looks at the easiest problem (N=1 M=1), one immediately runs into
nitinol. The phase field isn't of zero width, and the effect is changed by
alloying or mass fraction Ni or Ti. Nitinol has been patented. Is this a
situation of patenting a 1:1 ratio of atoms?

Fine, maybe the nitinol patent survives. But if one looks at the materials
industry, there are no end of patents about compositions of matter. Where does
dumb automaton mixing atoms stop and some actual intelligence start?

Much of the mixing of atoms (metallurgy, ceramics, pharmaceuticals, others) has
no intelligence required in finding some useful product. It is just a matter of
trying different ratios and testing them, and maybe something useful comes out
of it.

[ Reply to This | # ]

Patent trolls considered useful
Authored by: mjr on Wednesday, August 12 2009 @ 08:08 PM EDT

I agree with those who think this is a good thing. It's not enough, of course; probably we'll just see a bigger ransom change hands soon, the injunction likely being a negotiation tactic. But we need lots more of this kind of suits to target the big players and as widely used products as possible.

Sure, any gains of the trolls will be ill-gotten, and there will be collateral damage, but I don't believe in abolition or any useful reform of patents until there can be no question in the mind of the most daft and well-lubricated legislator that they are, indeed, a Bad Idea. And it doesn't hurt to hurt the strong pro-patent lobby while doing so.

I'll refer to my earlier blog article (parental advisory: explicit content) from June for more thoughts on this.

[ Reply to This | # ]

President's Council of Advisors on Science and Technology
Authored by: Anonymous on Wednesday, August 12 2009 @ 08:18 PM EDT
Archive wmv is now available.

President's Council of Advisors on Science and Technology

[ Reply to This | # ]

The i4i v. Microsoft complaint and standards
Authored by: dio gratia on Wednesday, August 12 2009 @ 08:58 PM EDT

On March 8, 2007 the i4i complaint was filed in the Eastern District of Texas, and nine days later the ISO announces a common patent policy with the ITU and IEC:

The policy adopted by the three organizations strongly encourages the disclosure of patented technology which is necessary for the implementation of a standard before the standardization process has been completed. It allows for companies’ innovative technologies to be included in standards as long as such intellectual property is made available under reasonable and non-discriminatory terms and conditions. In addition, IEC, ISO and ITU have jointly adopted Guidelines for the Implementation of the Common Patent Policy and a Patent Statement and License Declaration Form.
The policy provides for RAND patent licensing on standards, and nicely dovetailed with Microsoft's OOXML standard efforts. You could note that most of Microsoft's OOXML actions with ISO occurred after these dates.

There is no visible indication that Microsoft disclosed the patent threat to OOXML. Should there have been a duty of disclosure? A casual reading of 35 USC 271 (b)("Whoever actively induces infringement of a patent shall be liable as an infringer") would also appear to leave Microsoft vulnerable for infringement of any OOXML standards adopter's manufacture, distribution and use.

Could Microsoft's problems with the i4i patent be larger than just Word?

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Patent Term
Authored by: Anonymous on Wednesday, August 12 2009 @ 11:43 PM EDT
Here is my take on the patent term of 17 years. I believe that the patent term
was originally based on average life of person, 1/2 to 1/3 of someone's life. It
was also probably based on how long a thing was useful, a half-life concept.
Also, how long it took to develop.

So, software changes at a rapid pace. What if software patents were only valid
for a year? This allows for someone to make some money, but allows for
innovation to continue.

Granted trolls will cry foul, but I have yet to see the guaranteed profit
amendment in the constitution. Oh, wait a minute, there are Government Sponsored
Profit Companies.

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I hate patents
Authored by: The Mad Hatter r on Thursday, August 13 2009 @ 01:14 AM EDT

You probably think I am delighted. I am not. I hate software patents. And this is precisely why. It is karmic that this happened to Microsoft, who bullies Linux with patent threats and just got an XML patent of its own on August 4th that could, presumably, be used against the entire market. How stupid do we have to be to grant patents on software? On software *standards*? This is what happens. Now do you see it?


PJ, there is no difference between a software patent and a hardware patent. None. In both cases an intellectual monopoly is granted for an idea. Thomas Jefferson had some brilliant words to say about ideas:

“He who receives ideas from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me”

Whether your idea encompasses software or hardware, it's only an idea. When you share an idea it doesn't make you poorer. Those, like Microsoft, who have a vested interest in Intellectual Monopoly, claim that they need this support to be competitive. That they need the ability to overcharge (or lock competition out of a market) to be competitive. Are they that inefficient that they can't operate in an open market?

FOSS has been taking the lead in trying to educate the world that patents are toxic for software. They disrupt and they block innovation. Software and patents need to get a divorce. You might like to read Red Hat's amicus brief that it submitted in the Bilski case to see why software patents are particularly destructive to the FOSS development model.


Hardware patents are just as destructive to the development models of makers of automobiles, planes, ships, pharmaceuticals, etc. They raise the cost of goods to the consumer, with no payback to the consumer. Seriously. Patents are issued with the expectation that there will be a payback, as when the patent expires other entities can use it. But what if no one ever reads the patent to gain the knowledge held therein? In that case the Intellectual Monopoly was granted, and there was no payback.

This has become a point that has raised considerable concern in the last several years. I would recommend that everyone read Patents and the Regress of Useful Arts by Dr. Andrew W. Torrance & Dr. Bill Tomlinson, published May 15, 2009.

---
Wayne

http://crankyoldnutcase.blogspot.com/

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The custom schemas idea
Authored by: macrorodent on Thursday, August 13 2009 @ 02:03 AM EDT

I got around to skimming the article by Doug Mahugh. The idea stands on its own merits: In short, you define a way to display and even edit data from a separate document, by describing how to do so in your main document. While I don't think this has a place in any formal standard, it is a useful technique, and one that has probably been invented many times previously in different contexts. For example, I'm sure people have been doing something similar with the macros in sophisticated editors or word processors, including earlier versions of MS Office. XML just makes it simpler, by introducing standard ways to write references to parts of the second document.

And now this supposedly is forbidden without paying the troll under the bridge. Yes, yet another demonstration of the evil of software patents.

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Oh, the irony!
Authored by: Anonymous on Thursday, August 13 2009 @ 03:16 AM EDT
Has no one yet realized the delicious irony that MSFT lost this case to a
company called i4i, as in "an eye for an eye?"

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4i, a Canadian company, cleans up
Authored by: Anonymous on Thursday, August 13 2009 @ 10:22 AM EDT
<tongueincheek>
Do I detect some annoyance that not only is this a ridiculous
application of the Patent system, but even worse, Canadians
benefit!
</tongueincheek>

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Here's something interesting...
Authored by: JamesK on Thursday, August 13 2009 @ 10:44 AM EDT
"Vulpe said i4i had been working closely with Microsoft years ago to include its technology as a plug-in for certain corporate and government clients. Microsoft initially had limited interest in the feature because it considered it a niche product, he said. That apparently changed by the time Microsoft released its 2003 version of Word, which included so-called custom XML capabilities. That's when Vulpe said he and i4i's investors became concerned that Microsoft had infringed their patent, which was filed in 1994 and granted in 1998."
Toronto Star
Perhaps Microsoft is up to it's old tricks again.

---
There are 10 kinds of people, those who understand binary and those who don't.

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So i4i could sue end users, too!
Authored by: Anonymous on Thursday, August 13 2009 @ 12:03 PM EDT
Is setting the default output format of Word to .doc instead of .docx enough to
avoid an end user lawsuit, should i4i choose to pursue such a thing?

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What will be the effect in Europe?
Authored by: DMF on Thursday, August 13 2009 @ 12:25 PM EDT
I gather that Judge Davis' ruling has effect only in the USA - or does it? Is Microsoft bound to obey the injunctions worldwide, since it is headquartered here?

Perhaps this case will become an argument for those who promote software patents in the EU. "See? Without the protection of software patents, a large organization can rob a small one of 10s of millions of Euros."

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‘Dell: Linux v Windows netbook returns a 'non-issue'’
Authored by: Anonymous on Thursday, August 13 2009 @ 01:28 PM EDT
From the Register is reporting ‘Dell: Linux v Windows netbook returns a 'non-issue'’

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The i4i v. Microsoft Orders and Permanent Injunction - Updated
Authored by: Anonymous on Thursday, August 13 2009 @ 03:08 PM EDT
This happened a few days before the I4I judgement was handed down:
Microsoft granted patent on XML word processing files

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The US Patent Office is a Major Customer of I4I
Authored by: Anonymous on Thursday, August 13 2009 @ 03:28 PM EDT

Here is an old article from 2000. i4i Bags Significant XML Contract

September 29, 2000

i4i has inked a contract for the largest ever deployment of XML authoring licences.

The contract with the United States Patent and Trademark Office to provide 30,000 licences seems to confirm i4i as the world's dominant supplier of XML collaborative content development tools.

"We have supplied more seats in one implementation than all our competitors combined," said Rick Makos, chief executive officer and president of i4i.

(...)

i4i's S4/TEXT will help the USPTO implement a new electronic system for filing patents. Lawyers and patent agents will be able to file patent applications using Microsoft Word, the world's most widely used software application.

(...)

"The i4i technology makes the electronic patent like a regular Word document," said Shaw. "That is what we are hoping will move us forward in our quest for customer acceptance."

i4i is not a patent "troll". They have patents on real products being used by real customers, and they are one of the leaders in their field. Microsoft has recently incorporated equivalent features of their software in MS Office, and i4i are defending this threat to their own products with their patents. There is no patent "reform" that would have prevented this case. The only thing that could prevent this from occurring in future is to eliminate software patents altogether.

This raises a real question though. If the US Patent Office uses i4i's patented XML software then Microsoft's IP lawyers have been working with this software on a daily basis. You have "IP experts" using another company's "patented technology" on a daily basis, while one of the key new features in the leading product of their own employer was infringing upon this "patented technology". Why didn't Microsoft's lawyers point out this infringement to their employer? I can think of only two possible explanations. Either Microsoft's lawyers are utterly incompetent, or else the whole premise of software patents ("teaching" of new technologies to others in return for a temporary state granted monopoly) is worthless.

I think we can dismiss the former (incompetence) possibility and say that this case clearly demonstrates that software patents cannot be "reformed", only tolerated or eliminated. If professional patent lawyers cannot spot infringements when they are staring them in the face, how is is reasonable for software programmers to do so?

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News Picks
Authored by: JamesK on Thursday, August 13 2009 @ 04:35 PM EDT
It would appear someone forgot to create this earlier.


---
There are 10 kinds of people, those who understand binary and those who don't.

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overly broad injunction?
Authored by: Anonymous on Thursday, August 13 2009 @ 07:31 PM EDT
Microsoft is enjoined from:

1. selling, offering to sell, and/or importing in or into the United States any
Infringing and Future Word Products that have the capability of opening a .XML,
.DOCX, or .DOCM file (“an XML file”) containing custom XML;

This doesn't make sense to me.

My understanding of XML is that the body contains tags like "start
region" and matching "end region" enclosing data.

The regions have types, and types can be understood using schemas or DTD's. You
can't understand the contents without the additional info. But you CAN read the
file. You just hop over the parts you don't understand.

Correct me if I am wrong, but isn't it true that EVERY program which reads XML
can read XML containing custom XML?

As corollary, isn't it true that any program which correctly reads XML (even
without understanding) violates this injunction?

Wouldn't wordpad reading test XML be at risk by similar reasoning?

Has i4i patented, and a judge enforced, a patent on the general use of nested
parentheses enclosing uninterpreted data?

Microsoft needs to pull out their "tooth4tooth" patents, and bargain.

That, of course, won't solve the systemic patent problem.

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Microsoft sympathy thread
Authored by: Anonymous on Thursday, August 13 2009 @ 08:10 PM EDT
Express your sympathy for Microsoft here...

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The fix: Word, ODF Edition
Authored by: leopardi on Thursday, August 13 2009 @ 08:59 PM EDT

Could Microsoft circumvent the court order by disabling OOXML in Word and defaulting to ODF?

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.DOCX
Authored by: bigbert on Thursday, August 13 2009 @ 09:34 PM EDT
I wonder what my CEO is going to say now that we have converted all our .DOC
files to DOCX - against my advice? (And stuck them all inside a SharePoint
server).

This is what happens if you trust your data to a proprietary standard.

---
--------------------------
Computo, ergo sum.

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  • .DOCX - Authored by: PJ on Thursday, August 13 2009 @ 11:18 PM EDT
    • .BOSSX - Authored by: Anonymous on Friday, August 14 2009 @ 06:57 PM EDT
  • .DOCX - Authored by: Imaginos1892 on Friday, August 14 2009 @ 02:48 PM EDT
the only sitting federal judge who has a master’s degree in computer science
Authored by: JimDiGriz on Sunday, August 16 2009 @ 07:50 AM EDT
http://www.pcworld.com/article/170134/Court_Ban_on_Microsoft_Word_Wont_Hurt_User
s.html

Quote:
"But, interestingly enough, he’s also the only sitting federal judge who
has a master’s degree in computer science and who worked as a programmer before
attending law school and becoming a civil (patent & IP) attorney."

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Many of you just don't get it
Authored by: Anonymous on Sunday, August 16 2009 @ 08:35 AM EDT

There are a number of comments along the lines of "Maybe now Microsoft will see that SW patents are bad".

You need to understand 2 things.

  1. This judgement does not hurt Microsoft
  2. Microsoft will still lobby for software patents after this judgement

The point that many of you are missing is that $500 million is not really a lot of money for Microsoft. The occasional $500-million court loss is just a cost of doing business.

Software patents are strategically important to Microsoft. They offer the best chance of shutting down major Free Software projects. That chance is worth many billions to Microsoft. In the long run, Free Software is a threat to Microsoft's entire business model. If Free Software really took off, that could choke off a revenue stream of approximately $30 billion per year.

Now, do you understand why an adverse judgement of a mere $500 million or so is going to have absolutely no effect on Microsoft's pro-patent lobbying?

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Prior Art
Authored by: Anonymous on Monday, August 17 2009 @ 10:28 PM EDT
It seems that all the patent teaches is that two separate data stores be used to
separate mark-up from content with the mark-up somehow indexing into the
content.

If this is correct, how can there not be prior art to this patent?

Off the top of my head, almost all scripts that transform content would
anticipate this patent surely? For example, what about subtitling formats like
like the separate subtitle files in a DVD? Markup (the subtitle and the offset)
is in a separate file to the content (the videostream).

If this patent is valid, will they seek royalties from DVD manufacturers? When
did the DVD format get finalised??

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