MoneyWatch Tech

Microsoft's Past Comes Back To Haunt

By Erik Sherman

Updated on: September 10, 2009 / 10:25 AM EDT / MoneyWatch

In the patent battle between i4i and Microsoft, the briefs are flying fast and furious in the latter's appeal of its district court loss and the impending permanent injunction against selling infringing versions of Word. The latest filing from i4i sheds more light on the process, while raising additional questions, including whether the problems Microsoft currently sees are the result of its own long-term behavior:

In its brief, i4i stresses that its patent focuses on XML codes that describe the meaning of content, versus the formatting of content. However, the actual patent claims a method of manipulating "the architecture and content of a document" using metacodes that are mapped to the content. Although the description says that it's "particularly for data representation and transformations," it doesn't have a clear limit to that. And when an example in the brief refers to chapters, titles, and paragraphs, how do you begin to untangle the two?
The brief says, "The invention's key is to treat metacodes and content distinctly, such that each may be treated as a 'separate entity,'" and that Microsoft's assertion of the invention requiring content to be stored in separate files is erroneous because the patent doesn't use such language. As the brief argues, "Indeed, the Summary of the Invention broadly defines the documents that can processed with the invention and states that a document can be processed 'irrespective of its mode of storage.'" And yet, the patent includes a "metacode map distinct storage means." The argument of the patent's applicability to this case could well center around the term "storage means." In the programming arts, as patent language would refer to the process, is storage something that assumes some permanence, like a hard drive? RAM is generally referred to as memory, not as storage. And a program can store the value of a variable by allocating a spot in memory during the execution of the software. I have a feeling that the argument will come down to one of linguistics, and not technology per se.
I'll repeat an earlier observation: If you're storing metacodes separately from content, as many database-centric systems do when handling XML (even treating a given field as the de facto code), are you effectively infringing on the patent, because content and metacodes are stored separately? And if so, are there any examples that predate the i4i patent?
Although much of the argument in the case is over custom XML, the patent uses neither the word "custom" nor "XML." That might give Microsoft a way to challenging the patent on a broader interpretation, because if it can have the patent declared invalid, it has won. Sure, i4i could appeal to the Supreme Court, but at that point it would be in a weakened position and Microsoft might offer to buy the company at a price that would let it make the problem go away.
The nut of the problem appears to be that at one point Microsoft wanted to create an XML editor, couldn't do it within the context of Word, according to evidence that i4i had gained through the trial, and had asked to work with i4i to satisfy requirements by government customers, after which Microsoft decided to add custom XML editing to Word and put i4i out of the picture.

To put that last point a little differently, Microsoft has long had the reputation of being a dangerous partner to deal with. I remember developers complaining throughout the early 90s about the company's business practices and willingness to bury partners once it could. So, in a way, the i4i suit is nothing more than another example of Microsoft having brought pain onto itself from its behavior of years ago. The same thing happened with the Uniloc patent suit earlier this year, in which Microsoft lost to the tune of $388 million. It's appealing that one as well, but you have to wonder whether the company can continue to beat back all the challenges. And when the stakes extend to permanent injunctions over selling current versions of cash cows, one also has to question if the money Microsoft saved by not working with or acquiring business partners was really worth the cost it might ultimately pay.