“Texas Judge Bans Microsoft From Selling Word in the U.S.”

by Walter Olson on August 14, 2009

The Eastern District of Texas strikes again. [DailyTech, Concurring Opinions, Legal BlogWatch, WSJ Law Blog, earlier]

{ 1 trackback }

September 9 roundup
09.09.09 at 12:06 am

{ 8 comments }

1 PhilG 08.14.09 at 9:27 am

Back in the early days of computers, patents on software were not allowed and the software industry thrived very well indeed without patents. But later on, things changed, and in a way I am not aware of, patents became now allowed on software. And so software patents became another legal scam. So maybe now with such a high profile and extreme example, Congress will do something about the mess in patent law (but remember these are the folks who brought us CPSIA, so don’t expect much) and the patent office will stop issuing absurd patents.

2 VMS 08.14.09 at 10:01 am

Read the article! This was willful infringement and a clear theft of property. “Microsoft was reportedly hurt in the proceedings by a published trail of emails that indicated that the company knew that it was infringing on i4i’s work. Microsoft disagreed strongly with the verdict and promised to fight it in appeals court.”

I’m sure that Microsoft tried everything to get the patent invalidated, and lost. Now it’s time to pay the piper. MS has 3 choices: (1) Stop selling Word with the infringing technology (i.e. eliminate the open office XML capabilities and other infringing technology); (2) negotiate and purchase a license from i4i; and (3) appeal–Or a combination of the above.
The injunction is designed to force MS to negotiate a license. If that cannot be accomplished, then an appeals court will likely lift the injunction and remand to determine a reasonable royalty.

3 PhilG 08.14.09 at 12:54 pm

to VMS:

First of all, patents on software should not be allowed, as they were not allowed for many years. Software patents have been shown to be very anti-competitive and not very good at all for the consumers of software, as you can see in this case. And the patent office has been issuing many spurious patents which have been used by patent trolls to blackmail money out of real companies.

While i4i itself certainly does not appear to be a patent troll, i4i, which is located in Toronto, Canada, did choose to file its lawsuit many miles away in Tyler, Texas, which has a notorious reputation as probably the worst patent troll-friendly “hellhole” jurisdiction in the US.
I recommend you take a look at what Joe Wilcox of BetaNews has to say about this case at http://www.betanews.com/joewilcox/article/Is-Microsoft-violator-or-victim-in-i4i-patent-dispute/1250119565

4 VMS 08.14.09 at 4:00 pm

To Phil G:

Whether or not you believe that software patents of this type should be allowed, they are. It would require a Congressional act to amend Title 35 USC to make certain software non-patentable. Write a letter to your Congressman. After the invention is disclosed, all patents are bad for consumers; they create a limited time monopoly thereby increasing prices. If however, i4i (or any inventor) could not get patent protection from its software, R & D in this field would come to a grinding slowdown. Congress believes that allowing patents for software “promotes the progress … of the useful arts.”

If Microsoft rigged their electric meter and was stealing electricity from the power company, and it was deterined that they stole $50,000.00 worth of juice, I would hope that you would have no qualms if a jury socked them $500,000. for this misdeed. At the same time no one can argue that their software prices would be lower if they were using stolen energy, labor, materials, etc. in their process.

Having a known Tyler “hellhole” is a disincentive to large companies stealing other’s intellectual property. It’s very simple: Don’t steal things that are not yours. Microsoft apparently knew they were stealing, and chose to do so anyway. If consumers get caught up in the fray, so be it.

Usually before a company steals the other’s intellectual property, licenses are not that expensive. After you force the other company to sue you things are different.

5 Doug 08.14.09 at 7:34 pm

Licenses can be very expensive, what with the shake down and all.

6 MF 08.14.09 at 7:46 pm

If however, i4i (or any inventor) could not get patent protection from its software, R & D in this field would come to a grinding slowdown.

I’m a software engineer (std. disclaimers apply re: company I work for, etc.), and this is patently (pun intended) false. R&D would not be hampered in any way. Software is created to solve problems and to sell products. Make a better product, figure out how to market it successfully, and it will take off. I agree that the large companies have an advantage that they can throw lots of money at lots of targets and absorb the misses while profiting from the hits, while the little guys who miss simply go under. But if the big companies miss often enough, they eventually go under or at least throw fewer arrows that are more accurately aimed.

7 Paul 08.14.09 at 11:20 pm

Patents are given wayyyyyyyyyyyyyy too often for obvious things. I’m a software engineer also.

8 Griffin3 08.15.09 at 9:46 am

If however, i4i (or any inventor) could not get patent protection from its software, R & D in this field would come to a grinding slowdown.

The point PhilG was making, that VMS completely missed, was that if this was true, there would have been slow progress in the computer software before State Street made software patents (really, business methods applied to computers) “legal”. In reality, software theory was growing by leaps and bounds. Many of the more recent “technology ideas” (multiple users, graphical interfaces, virtual machines) were developed back then, and are making their way into the most common consumer devices.

For a while past the State Street decision, software theory continued to advance quickly; it took the better part of a decade, I think, to build up a proper collection of case law in order to make the over-broad patents worth enforcing. Then, with a vengeance, any large company with substantial software realized that they were targets: patents had been granted on ideas like using two or more programs at one time in a graphical system, streaming any video over a network, and like this one, any system for extending a formal data systems, using pointers from the programming code. [The patent was filed two years before XML was standardized, so don't be mislead by people describing it as just a method for extending XML]. It has gotten to where a company cannot write a large software application that does not violate these over-broad patents, and rely instead on a thicket of cross-licensing and hoping their number doesn’t come up in the lawsuit lottery.

The only real place that innovation is happening is in the open-source sector, and small businesses; it’s not just large-company inertia, but these small organizations don’t have enough money to be worth suing (and open-source doesn’t really have a well-defined place to sue). Software engineers are in places explicitly warned not to check to see if their work violates patents: not only would it take more man-years than they have to check all the overlapping and vaguely written patents, but since it is a virtual certainty that a large application will violate several patents, why court triple damages by knowing in advance?

To say that this current system of patent law “promotes the progress … of the useful arts” is a false statement. Additionally, to say that it would require an act of Congress to change the law is false; The court system allowed software patenting, indirectly, with the State Street decision, and are changing the way they will allow it in Bilski. It would be nice to have an explicit declaration by Congress, though, which would allow many companies to spend much more time developing software than paying lawyers to fight ridiculous patents.

But don’t just take my word for it, I’ve only been coding software since 1985. Check out Bitlaw for a quick summary, and Groklaw for more links exploring this in detail, along with editorial about “what this all means.”

Comments on this entry are closed.