Microsoft Word Ban Spotlights Software Patent Insanity

I'm in the unenviable position of defending Microsoft, but dive into the United States Patent and Trademark Office's database, and see if you don't agree with me that last week's court decision banning Microsoft from selling Word is nuts. The i4i patent Microsoft supposedly infringes seems loosely applicable to Word at best, and obvious enough software-wise to make you wonder why there are software patents at all. Plus, Microsoft holds some seemingly applicable XML patents of its own.Let me preface my arguments by noting that I'm not an attorney, I'm just playing one for the purpose of this blog. I also get that common sense has little to do with making valid legal arguments. Lastly, I realize that pointing to a Slashdot commenter to buttress my case that the i4i patent shouldn't have been issued because it's obvious from prior art, is weak.

Still, I think that where there's XML smoke, there's fire.

OK, so let's look at the i4i patent -- the one which the court found Microsoft infringed -- itself. It's Patent Number 5,787,449, issued on July 28, 1998, and is entitled "Method and system for manipulating the architecture and the content of a document separately from each other.

What it's for, according to the abstract is: "A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations. A map of metacodes found in the document is produced and provided and stored separately from the document. The map indicates the location and addresses of metacodes in the document. The system allows of multiple views of the same content, the ability to work solely on structure and solely on content, storage efficiency of multiple versions and efficiency of operation."

Translated, this means you can manipulate the contents of one document from outside that doc, by messing around with the map, which maps to the codes in the doc. (Though it would seem you'd have to have some kind of tracking system to keep the maps in synch, which in turn means your first doc can't be manipulated by an app with no awareness of the app that created the doc. Whew.)

Interestingly, nowhere in the i4I patent does it mention XML. Which it wouldn't, because XML didn't exist in its initial draft form until 1996. (The XML 1.0 spec dates from 1998.) The i4i patent, filed in 1994, does mention SGML, which was XML's predecessor.

OK, ladies and gentlemen of the jury, let me wrap up my opening statement by saying that it's not immediately obvious to me where in all this meta-tabling is something that's new, original, and patentable, and not obvious from prior art. Which is not to say that it's not, just that, on the face of it, this is one of those software patents which makes one wonder about software patents, period.

Now let's turn to my counter example, which was plucked after a short search of Microsoft's own patents. (What, you think this is like the old days when I could do a week's worth of serious research to produce an article?)

It is Patent Number 7,523,394, issued to Microsoft on April 21, 2009, entitled "Word-processing document stored in a single XML file that may be manipulated by applications that understand XML."

Here's the abstract:

I don't get it. So Microsoft can't manipulate XML files in Word, because that violates i4i's patent, which doesn't even mention XML. Yet Microsoft has its own patent for the self-same manipulation of XML files. I realize I'm making a slight stretch here for the sake of argument, but at the same time, if the i4i patent is as broadly applicable as the Word-banning court decision makes it seem, wouldn't that mean that Microsoft shouldn't have been issued this subsequent patent in the first place? And doesn't this conflict between the two patents further spotlight the idiocy of the entire software patent system?

Don't think my Microsoft example flies? Well, then how about Patent Number 6,510,434, awarded in 2003 to BellSouth for "System and method for retrieving information from a database using an index of XML tags and metafiles."

Ah, you say that this XML-metatagging patent is for a database, unlike the i4i, which is for a document!

This parlor game doesn't have to end here. You can keep playing at home. There are at least 339 patents with "XML" in the title, of which Microsoft holds 195.

When it comes to software patents, I'm shocked to say that Richard Stallman appears to be correct -- they're bad.

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Alex Wolfe is editor-in-chief of InformationWeek.com.