Microsoft Word banned in USA over alleged patent infringement by district court in east Texas

*** I am still digesting the facts. I will continue to update this web page as I progress. When finished, this page will provide a simple analysis of the facts, and offer an informed prediction about the likely outcome of the appeal:- ***

I can offer technical expertise and experience of the type of computer operation in question. I am consulting with contacts who have specialist knowledge in the other key areas, patent law and patent interpretation -- patent attorneys and editors on publications about scientific patents.

"Method and system for manipulating the architecture and the content of a document separately from each other"
- US Patent No. 5,787,449 (1998) [European Patent Office copy with diagrams]

At this stage the story has been widely reported in the mass media and online, e.g. CNET News, and commented upon by the general public. There is a lack of informed analysis.

Judge Leonard Davis of the US District Court for the Eastern District of Texas has issued a permanent injunction prohibiting the sale or import of Microsoft Word in the United States of America.

The case against Microsoft is questionable, and the court was under-qualified to make an informed judgement on the relevant issues. Furthermore, this court is reportedly famous for being biased against big companies, and has a proven track record of ruling in favour of small companies in previous patent-infringement cases. Microsoft will appeal and the injunction is not expected to affect sales of MS software.

The judge and laymen responsible for this decision lack the technical expertise required to compare the concepts described in the patent with the concepts applied in a software product such as Microsoft Word. The patent describes complex technical concepts and uses terminology that would be confusing even to somebody who does possess the technical expertise. The judge and laymen also lack the necessary expertise of patent law. In addition to the technical and legal complexities of this case, the text of the patent is not easy to follow; therefore it seems likely that the judge and laymen could not have understood the document.

Faced with a case too complex to understand, a judge and laymen could easily rule in favour of the side that they best understand, even if that side rests on flawed arguments. In this case, in a district court in Texas, we have the arguments put by technical and legal experts representing the world’s largest software corporation, against the arguments put by representatives of a relatively small business.

If the judge and lay people involved were experts in computer science and patent law, which they were not, of course judges can make mistakes.

12 August 2009

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Michael Wasserman (13 Aug 09, 21:17)

I read the patent. It seems to boil down to this: markup is inline, that is, it interrupts the data stream it describes; inline markup can be inconvenient; to take the markup out of the data stream one can create a separate map indexed to points in the data stream being described. That seems to me to be about the most obvious and trivial solution in the world. Using indices to reference portions of a data stream was described in the literature at least as early as 1973. Communications of the ACM, 16:622.

The court should not accept any appeal until Microsoft has paid the amount to i4i.
This standard should apply to all court ordered damage claims in patent cases.
RCA 'murdered' US's best inventor by continually appealing against awards, until inventor was bankrupted and committed suicide.
Sadder fact is that most of RCAs wealth was created manufacturing inventors inventions - legally at first, then just stolen when inventor would not allow RCA to claim inventorship.

Tim Acheson (14 Aug 09, 10:37)

Wasserman raises an important point. Even if Word demonstrably violates this patent -- which is not the case; this fundamental idea predates the patent application by at least a year. This fact can be readily proved, to anybody who understands the concept, by reference to published literature.

Stuart highlights a valid criticism of the appeal process, which is open to abuse. Protecting the rights of plaintiff and defendant in the same court is a difficult balance, especially in a patent case. Forcing the defendant to pay before an appeal would solve one potential problem but create another. In other cases the smaller company could be the defendant. A bad decision by a district court could be a fatal blow if the defendant had no safeguard before an appeal.

Tim Acheson (19 Aug 09, 15:13)

Update: Microsoft appeals against Word ban

"Today, Microsoft filed a motion with the Court of Appeals for the Federal Circuit to seek an expedited review of its appeal and to stay the permanent injunction while the appeal is pending," said Kevin Kuntz, a spokesman for Microsoft. "These filings are not unusual in patent cases. As we've maintained throughout this process, we believe the evidence clearly demonstrates that we do not infringe and that the i4i patent is invalid."
Tim Acheson (04 Sep 09, 17:26)

Update: the ban on MS word has now been overruled.

... Microsoft has successfully requested a stay against the ban, and has asked for its appeal to be heard as soon as possible. ... Arguments in Microsoft's appeal against the original court ruling are due to be heard on Sept 23. The company will hope that the situation is resolved before Oct 22, when it launches its next-generation computer operating system, Windows 7. ...


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