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Microsoft Faces Permanent Injunction against Selling Word

When my colleague Michael Hickins called, getting me to break away from some writing, and told me that the district court in the eastern Texas district granted a permanent injunction barring Microsoft from selling Word, I was sure he was kidding. Apparently not. In the patent infringement lawsuit that i4i brought against Microsoft in the Eastern District of Texas, a court considered -friendly to plaintiffs in patent cases, Judge Leonard Davis issued the following permanent injunction:

  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.
To make sure this is clear, starting 60 days from now, Microsoft is not allowed to sell any version of Word that can open or write XML files. Why? Because Word supposedly infringes on i4i's patent number 5,787,449, which covers a way to manipulate the architecture and content of a document separately from each other. Here's how the patent describes it:
The invention does not use embedded metacoding to differentiate the content of the document, but rather, the metacodes of the document are separated from the content and held in distinct storage in a structure called a metacode map, whereas document content is held in a mapped content area. Raw content is an extreme example of mapped content wherein the latter is totally unstructured and has no embedded metacodes in the data stream.

A metacode, which includes but is not limited to a descriptive code, is an individual instruction which controls the interpretation of the content of the data, i.e., it differentiates the content. A metacode map is a multiplicity of metacodes and their addresses associated with mapped content. An address is the place in the content at which the metacode is to exert its effect.

Thus, these structures completely replace the concept of a document which combines content with embedded codes. Delivering a complete document would entail delivering both the content and a metacode map which describes it.

So there are two files, one containing the content and another containing metacodes and associated addresses in the content file. That's different from the historic practice of intermingling formatting codes with text, though probably not significantly different from the other practice of using a database to store both content and metacodes and associating them in a meaningful manner -- something that I suspect predates the June 2, 1994 filing date of the patent, given that tagged text was around at least as early as the 1970s. However, I don't have a handy piece of prior art.

So clearly the injunction is for infringing versions of Word, meaning any that use this two-file system. That would still allow Microsoft to open and write XML and related files by keeping the formatting codes embedded with the text. In fact, the injunction still explicitly allows Word to open or write XML files as plain text. That gets into some really sticky technical questions:

  • Given that XML codes are also text, how do you reasonably differentiate between the two?
  • Why shouldn't Word be able to open an XML file and then present it in some more graceful way, just as a browser would do?
  • If Word simply leaves the XML codes embedded rather than splitting them out, can Microsoft then sell it?
  • Would that last suggestion get Microsoft too close for its comfort to an open document format, because then everyone would be able to see the XML codes it's using?
From the patent attorneys Ironically, this might actually help create the image of Microsoft as ... wait for it -- technology victim.

"People are in an uproar anyway in the software industry when they see these types of cases, because software technology moves so rapidly," says Gerard Norton, chair of the IP department at law firm Fox Rothschild, who was also kind enough to send copies of the injunction and patent to me.

The next step depends on Microsoft's strategy. I spoke with one savvy patent attorney I know who thought they'd definitely appeal, which was my guess. But Norton thinks that given the circumstances and that permanent injunction looming, they'll settle instead to get the issue off their back.

Another possibility, of course, is buying the i4i and then settling with itself. But the result has to be making a lot of software companies pretty nervous. XML and variants are widely used, and I can't imagine that other companies haven't decided to separately handle the content and metadata separately.

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