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Company also says that the ban will cause it "irreparable" harm

I4i's victory in its patent infringement case against Microsoft was a slap in the face for the Redmond juggernaut.  Not only did a judge order $290M USD in damages be awarded to i4i for Microsoft's violation of its XML patents, but it also ordered Microsoft to stop selling Word, in its current form, until a final verdict is reached.  Word currently uses the Office Open XML (OOXML) format, which infringes on i4i's patent.

As the days roll by and Microsoft's 60-day compliance windows closes, the company is pleading with courts to lift the injunction.  It says that if the injunction is not lifted it will likely be forced to stop selling Microsoft Office for several months. 

Writes Microsoft's defense team, "Microsoft and its distributors face the imminent possibility of a massive disruption in their sales. If left undisturbed, the district court’s injunction will inflict irreparable harm on Microsoft by potentially keeping the centerpiece of its product line out of the market for months. The injunction would block not only the distribution of Word, but also of the entire Office suite, which contains Word and other popular programs."

Some are puzzled, though, as to why Microsoft would stop selling Office, rather than simply changes it file format and distinguishing between the current and XML-less editions.  States Barry Negrin, a partner with the New York firm Pryor Cashman LLP who has practiced patent and trademark law for 17 years, "All Microsoft has to do is disable the custom XML feature, which should be pretty easy to do, then give that a different SKU number from what’s been sold so it’s easy to distinguish the two versions."

In the unlikely event that Microsoft does indeed carry through on its claim to stop selling Office, it could prove a headache for consumers and businesses, who rely on the software's functionality.  However, light-weight alternatives such as Open Office 3 (which nears Office 2007 in functionality) and Google Docs could get a brief boost if Microsoft Office disappeared for several months -- a prospect that has some excited.



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RE: Interesting...
By brybir on 8/20/2009 12:27:09 PM , Rating: 4
Sometimes I think we here in the comments think that everyone else is stupid.

We see things like "the change is trivial" or "if they knew what they were doing they would"

The above poster is right. One of Microsoft's flagship products has an injunction placed upon it by a federal court. It either has the choice of working around the infringing use or stop selling the product. This could and probably will cost Microsoft billions of dollars either way. You can be certain they are in panic mode over at Microsoft from the lowest level coder to the CEO, and probably most of their in house and outside legal teams.

They will have to decide what to do. My guess is that they are banking on an appeals court putting a hold on the injunction as recent patent litigation at the Supreme Court and Federal Circuit has really moved away from issuing injunctions that cause "Irreperable Harm" in favor of cash settlements and long term workouts.

So we shall see what happens. All in all I think its a win for most of us that have been avidly against software and business method patents. This lawsuits is just another example of some of the absurd results. Maybe Microsoft losing a billion dollars here or there will help it change its stance on software patents.


RE: Interesting...
By MadMan007 on 8/20/2009 12:46:16 PM , Rating: 4
<q>All in all I think its a win for most of us that have been avidly against software and business method patents.</q>

Did you mean it's a win for those who don't like MS? Because this is just a different company doing the same type of software patent litigatoin against MS.

Or do you mean the potential impact of the case might finally make more people realize software patents need to be improved?


RE: Interesting...
By mars777 on 8/20/09, Rating: -1
RE: Interesting...
By MrWho on 8/21/2009 11:12:19 AM , Rating: 2
[quote]
Because this is just a different company doing the same type of software patent litigatoin against MS.
[/quote]

Oh, the sweet irony! :)


RE: Interesting...
By Motoman on 8/20/2009 12:54:40 PM , Rating: 5
...having worked in the software industry for about 17 years, let me just call BS on this one.

Yes, generally speaking, making a change to a program involves a lot of regression testing and other QA fun.

But in this case, I do think it would be pretty trivial for MS to just make unavailable the format in question. Just remove it from the options in the file dialog. Wouldn't take them much to do that. Or to verify it didn't break anything.

Anyway, I wonder why MS doesn't just pony up the money that i4i wants, to keep selling the produt as-is, and then file suit claiming that the patent is unenforceable to get their money back. $290M is pocket change for MS.

...either way, there's not a chance in hell that MS is actually going to pull Word from the market. No chance at all...this is just blustering on their part.


RE: Interesting...
By Xavier434 on 8/20/2009 1:11:06 PM , Rating: 5
I tend to side with you on this one too. If MS has coded Office efficiently enough then this kind of change shouldn't cost them so much money that it is worth even considering stalling the sales of the entire suite.

I think they are bluffing.


RE: Interesting...
By Spivonious on 8/20/09, Rating: -1
RE: Interesting...
By Xavier434 on 8/20/2009 1:59:26 PM , Rating: 2
That doesn't mean that the structure of the code is 15 years old though. It just means that a lot of the concepts and some of the design is 15 years old.

I am not saying you are wrong necessarily, but it just seems highly unusual that a product so popular and so seasoned would be so costly and difficult to implement this specific kind of change. Even more importantly, it seems even less likely that the cost to do so would greatly exceed that of refusing to sell the whole sweet for several months.


RE: Interesting...
By Samus on 8/21/09, Rating: 0
RE: Interesting...
By Fritzr on 8/21/2009 5:44:43 AM , Rating: 4
Do a little research before spouting off. i4i is a real company, they have real products and a real patent that was issued to them for a concept they use in their own product.

If you had even read this article and nothing else you would have noticed that Microsoft discussed this patent with i4i BEFORE infringing on it and also that the court felt that Microsoft was attempting to use their financial might to bury a smaller company that failed to settle for Microsoft's offer.

Microsoft had 3 choices
1) License the patent
2) Not use the method described in the patent
3) Infringe the patent and hope i4i could not afford the cost of taking Microsoft to court

Microsoft chose #3 and lost the bet.


RE: Interesting...
By Samus on 8/21/2009 10:35:34 AM , Rating: 5
I'm affraid your confused with RIM v NTP, where a patent was previously discussed and RIM lost.

Because even though i4i attempted to license the patent to Microsoft, they didn't disclose specifically what part of XML Microsoft was infringing and therefor didn't take the threat seriously. I don't have the IP documentation in front of me, nor does anybody here, but if you know anything about computer languages, I would have done the same thing Microsoft did and blew them off. You can't logically patent a feature on top of an open source language. Only a dumbass judge and jury would grant such a ridiculous judgement.

Ohh, and please, do tell us what products i4i has developed. Because if you check out their portfolio, they basically make nothing but a bunch of crappy XML software that needs...you guessed it, Microsoft software to run. Word, mostly. So I don't see how Microsoft halting shipments of Office is going to help i4i. But i4i doesn't care about selling their XML software anymore, because they're being awarded $290 million, more than they'll ever be worth.


RE: Interesting...
By AbsShek on 8/24/2009 8:03:19 AM , Rating: 2
The OOXML side of things is fairly new, and it is a general rule of thumb in software development is that if you are making feature updates to legacy code, you revise the design and modernize it as necessary.

This "old code" argument has been pulled for a lot of software by MS, and I consider it moot. They do get a lot of flak for their products, but they also have very capable developers who end up getting pushed around by marketing, directors etc (like in most software companies).*

The holding off sales looks like more of a publicity stunt than anything else.

*DISCLAIMER: I do not work for MS. Personally, I avoid their software where I can.


RE: Interesting...
By ZachDontScare on 8/20/09, Rating: 0
RE: Interesting...
By Motley on 8/20/2009 2:16:30 PM , Rating: 4
I would also like to add in that they would also likely have to change the internal product code so that patches to the original version of office don't get applied.

Of course that also means that every add-on and 3rd party add-on has to be retested to make sure they will continue to work in 2007.1 as well. Those that call office through DOM, or .NET interop libraries will need to be retested and possibly patched as well.


RE: Interesting...
By Motoman on 8/20/2009 2:32:56 PM , Rating: 3
quote:
And I'm calling BS on your calling it BS. Do you work in the commercial software industry? I do - and MrBlastman is dead on accurate with his assessment.


Yup, commercial. And again, I agree with the OP in general terms. However, if you look at what I'm suggesting, you'll see it's a pretty trivial thing.

It seems to me that all MS needs to do is to remove the offending XML-format option from the file dialogs - in particular, the Open and Save As dialogs. Just remove that option from the drop-down. That makes it impossible for anyone to use the offending functionality.

Realistically, they *should* even have the format translation functionality in discrete subroutines too - such that they could pull the whole thing with little to no effort.

And I'm not saying push it out the door with no QA at all. What I'm saying is that for something this small, and unequivocal (no one can even get to the function if you take away the GUI option to get there), the risk is exceedingly small. QA it in a week. New image for production is then ready, start using it on new disks. Issue a new SKU number.

If they're not completely lost, they've already done this anyway.

The point being that this is a relatively special case in terms of the change needed and the risk involved. Doesn't look to me like something that needs full regression testing.


RE: Interesting...
By Boze on 8/21/2009 6:51:15 PM , Rating: 2
quote:
The point being that this is a relatively special case in terms of the change needed and the risk involved. Doesn't look to me like something that needs full regression testing.


That's what technical, logical people tend to think. Until something goes horribly awry. Then the old adage of the medical professions becomes the order of the day - "An ounce of prevention is worth a pound of cure."


RE: Interesting...
By Smilin on 8/25/2009 5:55:23 PM , Rating: 2
Dude, you're clueless.

I'm not sure what development you do but I seriously doubt it's on the same scale as what Microsoft does.

Lets say for argument sake that they leave all the code in and simply remove the option for the menu. Easy right? Wrong.. Now you have to go and relocalize the UI for 37 different languages.


RE: Interesting...
By Xavier434 on 8/20/2009 2:34:42 PM , Rating: 1
...but will that process actually cost MS more than the loss in sales? That is really the only question at hand. No one is arguing that the process that MS has to go through to make the change doesn't cost much money.


RE: Interesting...
By Fritzr on 8/21/2009 5:56:42 AM , Rating: 4
They could have adopted an existing open standard. Instead they chose to adopt an existing proprietary standard and have it declared an open standard used only by Microsoft.

All they had to do was use the Open Office XML format or any other XML formats declared open and free of licensing fees


RE: Interesting...
By HotFoot on 8/21/2009 7:28:03 AM , Rating: 2
I guess MS is just lucky this is a Patent violation and not being covered by copyright and prosecuted by the RIAA... the fine would have been in the Billions or more, surely.


RE: Interesting...
By Smilin on 8/25/2009 6:02:06 PM , Rating: 2
Oh that's right. The Open Office XML format that is utterly incapable of storing spreadsheet formulas without...wait for it...proprietary extensions.

Open Office XML sucks. We'll see what 1.3 brings though.


RE: Interesting...
By Smilin on 8/25/2009 6:32:08 PM , Rating: 2
Forget everything I just said. All this office open openness opening xml confuses me.

I mixed up the people's front of judea with the people's judean front.


RE: Interesting...
By VaultDweller on 8/21/2009 7:53:24 AM , Rating: 4
I have a question for everyone that's remarking that making code changes to a commercial software like Office is such a monumental undertaking... do you realize that Microsoft issues patches and updates (that make code changes to Office!) pretty much every single month?


RE: Interesting...
By fleshconsumed on 8/20/09, Rating: -1
RE: Interesting...
By Motoman on 8/20/2009 8:49:30 PM , Rating: 4
...on the contrary, most if not all of that is handled by the same control. Or maybe a couple of controls.

Working with modern modular programming makes a lot of that stuff pretty easy.


RE: Interesting...
By DOSGuy on 8/20/2009 8:41:40 PM , Rating: 2
But it's pretty bizarre bluster. When I first heard about the injunction, I assumed that Microsoft would either buy a license from I4I to continuing selling Word, purchase the patent from them, or buy out the company. I4I would obviously agree to one of those options since, not having a competing product, they gain nothing from the injunction. Microsoft's admission that they will have to stop selling Office for months only raises how much money I4I can demand.

Since this admission obviously hurts their bargaining position, the only explanation I can come up with is that Microsoft is trying to scare the courts with the prospect of taking Microsoft Office away. And yes, I realize that, as a publicly traded company, Microsoft is obliged to disclose this potentially massive hit to their balance sheets, but it seems like they could have warned the public in a more subtle way. Announcing in such straightforward language their intention to pull Office seems almost like a threat.


RE: Interesting...
By Motoman on 8/20/2009 8:52:31 PM , Rating: 2
It is a threat. They're bluffing. They're hoping they can just intimidate the judge into doing what they want.

What MS needs is precisely not to get what they want...in this case, anyway. If they did knowingly break a patent, well, they need to make amends. If the patent is unenforceable, that will come out in the wash. They also need to not be able to bully a federal judge around...there's no good that can come out of that, in any way.


RE: Interesting...
By gstrickler on 8/22/2009 1:30:16 AM , Rating: 2
When you read something as absurd as this, you have to start asking questions. Why would MS make such a statement?

Option 1: They can't or are unwilling to pay the $290M? Absurd, it's practically pocket change to MS. They've got billions in cash and liquid assets, they could pay it in 24 hours if they had to.

Option 2: They can't make the required changes in time? Preposterous, they make emergency security updates, test them, and release them as critical updates in under 30 days when it's important enough. Additionally, they've known they could lose this for months or longer, they have a contingency plan that involves disabling the offending code, and if they don't, their shareholders should sue the Executives and Board of Directors for failing to perform their fiduciary responsibilities. They've probably written and tested the change already.

Option 3: They want to delay payment to i4i as long as possible and make it as financially painful as possible for i4i? A common tactic. Very probable, but not the main reason.

Option 4: It's a bluff? Playing chicken with the a judge who has already ruled against you is generally not a smart move. Despite all the stupid mistakes to come from MS, they're not stupid, especially when it comes to legal issues. Remember, Bill Gates father is a lawyer. I think it is a bluff, but you have to look deeper to see why.

Key piece of info - 60 Days from the Judge's order puts us into mid October, which is precariously close to the Christmas and end-of-year budget season whose sales are critical to distributors, retailers, and OEMs. They are the ones who would suffer "irreparable harm".

Stopping sales of Word and Office will hurt MS's OEMs, distributers, and retailers more than it will hurt MS. Stopping sales of Word and Office for 30-60 days will have a temporary impact on MS's cash flow, but most end-users will either rush to buy it before sales are suspended, or wait until they resume, and MS will end up selling about the same number of copies. Net damage to MS, very little.

However, if the OEM's can't offer the discounted OEM versions pre-installed on a computer, those OEMs lose sales of Office and/or have delayed sales of computers. User's who go ahead and buy a computer during this time and can't get Office as an OEM add-on (at OEM pricing) will either pirate it (causing MS "irreparable harm"), or will have to pay full price later (causing the consumer "irreparable harm"). You could mitigate the damage to users and MS with some type of voucher allowing a later purchase at near OEM pricing, but the OEMs may still suffer.

MS has no intention of stopping sales of Word or Office, but it's not the court they're trying to bluff. MS is trying to get the OEMs and retailers to join them in showing that the injunction will cause "irreparable harm" to them, and thus have the injunction lifted. Then they can drag it out as long as practical and make i4i wait for their money (see option 3) until MS gets around to releasing a version of Word that doesn't infringe on the patent.

P.S. None of the above implies that I think the patent is valid.


RE: Interesting...
By Smilin on 8/25/2009 6:13:15 PM , Rating: 2
quote:
Option 1: They can't or are unwilling to pay the $290M? Absurd, it's practically pocket change to MS. They've got billions in cash and liquid assets, they could pay it in 24 hours if they had to.


This would be the end of the case though. They will have basically validated a bogus patent and guaranteed anyone trying to use their open format now has to pay licensing instead. Unless i4i is willing to accept a settlement (large one even) that does not admit guilt then there is no way MS should go for this.

The judge needs to get rid of the injuction while appeals are still ongoing. This injuction will result in such harsh punishment for the defendant that they will consider giving up their appeal just to avoid it. That is not justice.

No, the judge needs to drop this thing. I'm sure MS would love to drag this case out, stall and all that. If i4i was having lost revenue that was going to bankrupt them I would understand. This isn't the case though. i4i is alive and well and doing just fine without this money. They can wait patiently for the whole case to be concluded.


RE: Interesting...
By gstrickler on 8/29/2009 2:17:24 AM , Rating: 2
RE: Interesting...
By sxr7171 on 8/21/2009 3:33:28 PM , Rating: 1
You know how they say we don't negotiate with terrorists? Well that's what this sounds like. If they paid the $290 million, then it would open up the floodgates to all sorts of other disruptive coercion. I think they should just find a suitable fee as if they had licensed the tech and pay going forward. If a patent holder waits this long to enforce a patent they should be subject to a "you snooze, you lose" provision. You can't just sit there and wait for a product to sell millions and then suddenly decide to enforce a patent and expect to collect on prior sales. It's just ridiculous. They should maybe be allowed a licensing fee from the day they filed, but not before that.


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