back to article Microsoft loses Supreme patent fight over Word

America's top court has rejected Microsoft's appeal against a ruling that Microsoft Word infringed on patents owned by a tiny Canadian software maker.. The US Supreme Court unanimously upheld an earlier court's ruling that said Microsoft willfully infringed on i4i's XML patents in Word 2003 and 2007. Microsoft was ordered to …


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  1. Neil Barnes Silver badge

    Microsoft <...> would now concentrate on trying reform US law to prevent abuses of the patent system

    They're kidding, right?

    1. Anonymous Coward

      "They're kidding, right?"

      No, because patent enthusiasts always think that their own patents are like golden unicorns farting happiness and pissing magic whereas other people's patents are the worthless manure that their unicorns would never produce. Obviously, everyone making the "high quality patents only" argument thinks like this because they still want the officially sanctioned state monopoly to work in their favour.

      The solution is just to get rid of patents outright and make the patent-happy do some work for their money, rather than expect everyone else to pay them for the privilege of realising (usually completely independently) whatever "nifty" ideas got sent off to the patent office.

    2. Hardcastle the ancient

      same title


    3. mafoo

      An old joke reinvented

      How many Microsoft engineers does it take to change a lightbulb?

      None, they get their layers to redefine darkness as standard.

    4. Anonymous Coward


      ...of the kind they made when they ripped off someone elses patent?

    5. The Fuzzy Wotnot


      Read as, "We've a had a laugh got a couple of quid out of it but the small fry seem to have tumbled the game and turned it against us, so let's change the rules so we can start it milking these again but in a different way that will only benefit us this time!"

  2. Anonymous Coward

    I had to laugh

    "Microsoft said on Thursday that it would now concentrate on trying reform US law to prevent abuses of the patent system"

    Oh really? What has MS recently being doing themselves?

    1. Danny 14


      but although I hate M$ for trying to do this, it WOULD undermine patent trolls.

    2. Paul 129

      It makes sense if you think like M$

      Frivolous patents are the problem. So to reduce this patents need to be more expensive. Whilst at it other reforms should include a wholesale bulk electronic lodgement process with appropriate discounts, oh yes and guess who can come up with the software to do this. B-)

      M$ (Perverting the system for the last 36 years)

  3. Zippy the Pinhead

    Microsoft vows to stop patent abuses

    "With nowhere left to go in this four-year case, Microsoft said on Thursday that it would now concentrate on trying reform US law to prevent abuses of the patent system."

    Excellent now lets see you stand up and stop patenting software and use copyright protection instead.. like you should be using!

    Come on Microsoft, here's your chance to do the world a favor.. stop patenting software! You don't have to patent it, that's your choice! You could easily copyright it instead as you should have been doing in the first place!

    1. big_D Silver badge

      The problem is

      is they stop patenting their software, they will get more of these bogus cases coming up against them.

      The same goes for sueing others, they have to, because they hold the patent...

      They need to scrap the software patent and get rid of the freeloaders, who are ruining it for real developers.

      This is a sad day for software development, at least in the USA.

  4. Zippy the Pinhead

    And to go even further

    I for one look forward to Steve Ballmer visiting the patent office tomorrow and asking that all Microsoft software patents be turned into copyright.

    Wait, did I hear you say it's not gonna happen? But you just stated publicly that you wanted to see companies stop abusing the patent system here in the US. Oh, I see, you meant OTHER companies!

    1. Vic


      > asking that all Microsoft software patents be turned into copyright.

      That doesn't make sense.

      Microsoft *already* copyrights its code. Copyright exists on specific implementations, and jsut about all code currently available in any medium is copyrighted.

      Patents are about preventing others from independently developing your "invention" - and I have to use quotes around that word, since most patents I've seen lately involve no such inventiveness.

      There's no way that patents could be transformed into copyrights, since they cover necessarily different aspects of development. And that is one of the many reaons why software copyright should exist, but software patents shouldn't.


      1. Zippy the Pinhead

        @ Vic


        I'm not disagreeing with you. I know they copyright the software already, I was just being sarcastic. I'm not against patents because honestly if I invent something other than software I want to be able to patent it or some large company would just swoop in and steal my product and I would never be able to compete against that.. and why should my idea make an already rich company even richer without me licensing or selling the technology to them.

        But to go further.

        Ask a developer.. do you WRITE code or do you INVENT code? You write it of course!

        In fact you can write code in many different ways and it can have the same results. However when a developer writes code he writes it for a specific OS designed to run on a specific type of computer and he then expects his patent to protect hm from all the others doing the same thing even if they are not writing in the same computer language or OS. This is why I object to software and process patents.. They pervert the patent process. Patents aren't the problem. The problem is they should never have been using patents for software in the first place! And don't even get me started on patents to protect a process!!!

        Take the toaster

        Patent 1 - simply because I typed this example 1st

        A electrical powered device that uses heated coils and pops up when a selected electrical resistance is reached then I have a modern home toaster

        Patent 2

        A steel bar with a wooden handle on one end and a thin steel cage on the other, I have made a toaster that would work excellent over a camp fire.

        The two devices are equally valid and do the same function just in different ways and are actually mutually exclusive since one requires the use of fire as a heating source and the other requires the use of electricity. However if this was a software or a process patent the person who made patent 1 could sue the owner of patent 2 for infringing on his invention.

        They are both valid devices doing the same thing but in different ways.

        Now if the patent office were to create a patent just for software and they made the rules that allowed the patent very specific then maybe I will agree to using patent protection for software..

        But I would insist on the following:

        What is the specific OS this software designed to run on including version number of the OS.

        Since code written under MacOS and Windows or Linux would probably be different don't expect a patent you created to work under Windows to also protect you under a different OS if you didn't code for it.

        Is the application web based or what, is the code portable, in which specific way?

        What was the software coded in, (an application compiled in C cannot be protected if someone else can have the same desired effect if they built their's in Java or visual basic or assembly or whatever. They may be doing the same thing but they are doing it in a different way and their code is different from yours.

        A copy of the code MUST be attached - Yeah I know software companies would hate this but the Patent Office could hold this back from the public to protect the person or company who created the code - this way the patent office could reject copied code. All comments would need to be removed from the submitted code and the patent office could just do a code comparison.

        The software must work as described and not be something oblivious that people would do naturally without the patent in the first place (I'm thinking the Amazon OneClick patent here which really isn't a software patent but a process patent but I think you get what I mean)

        I could go on, but the point I'm getting to is this is a fail on the Patent Office in the first place who without thought or consideration just made it easier on the lawyers and patent trolls to get rich and kill innovation.

  5. technohead95

    You are f***ing joking??

    "Microsoft said on Thursday that it would now concentrate on trying reform US law to prevent abuses of the patent system."???

    Microsoft is doing the exact same thing to Android handset manufacturers claiming a royalty for every single handset sold.

    Microsoft should get its two-face and hypocritical self of its high horse and stop dragging other companies through the courts abusing the very patent system that it claims to be victim of.

    1. Pascal Monett Silver badge

      Hypocritical ?

      No ! No! Dear me, no ! That will not do, not at all.

      In the Manager's Lexicon this is called Good Business Sense, not Hypocrisy !

      I'm sorry but you'll have to redo your Management 101 : Proper Terms And Concepts unit, otherwise we'll never be able to make a CEO out of you.

    2. Giles Jones Gold badge


      It's Linux is general, Android happens to be Linux based. They keep going on about the FAT file system and how they have patents on it.

    3. Anonymous Coward
      Anonymous Coward


      Hypocrisy is an ethical concept, which has no place in the business world. Not only does no one pay any attention to hypocrisy or try to avoid it, there is plentiful evidence that they cannot even see it when it is right in front of their eyes.

      You cannot optimize a system for two variables at the same time. The world of business can be defined, for practical purposes, as that world in which everything is optimized to maximize the height of the pile of money acquired in unit time. Therefore, while business people may find it useful to talk about ethics, they cannot apply it without becoming very unsuccessful business people.

  6. Anonymous Coward

    This is so funny...

    So they will try now to "reform copyright law"? These guys are as IP sharky as they come!

  7. Ed Deckard

    O for the St. Ballmer icon!

    "Microsoft said on Thursday that it would now concentrate on trying reform US law to prevent abuses of the patent system."

    The enemy of my enemy is my friend.

  8. NoneSuch Silver badge
    Thumb Up

    Unlike past instances...

    Like SCO vs. IBM, M$ did steal the technology and paid the price. While they only paid out $300 mil I am betting their legal bills will be at least that again. Office 2003 / 2007 made M$ billions in revenue.

    Congrats i4i. The little guy finally gets his day in court.

    1. Anonymous Coward

      Re: Unlike past instances...

      Uh, IBM didn't "steal" anything from SCO. You must be Darl McBride or at least as delusional.

      1. alwarming

        I think "nonesuch" meant

        "Unlike past instance, such as IBM Vs SCO, M$ did..."

        But yeah: SCO sucks. Ironically SCO was rumoured to be backed by M$ in the whole saga in some twisted manner.

      2. Ben Tasker


        Reckon you forgot to read his title!

        It said "Unlike past instances.... Like SCO Vs IBM"

      3. BristolBachelor Gold badge


        No, I think you have mis-interpreted what was meant. When (s)he said:

        "Like SCO vs. IBM, M$ did steal..."

        It meant that SCO did steal...

      4. Andy Jones

        Not quite


        Unfortunately you need to start reading his post from the title and not just the post itself. When you do that you get:

        "Unlike past instances like SCO vs. IBM, M$ did steal the technology and paid the price."

        it makes sense then. It confused me at first as well.

    2. Oninoshiko


      presumably you can tell me exactly WHAT IBM stole? It's going to be a trick, because SCO didn't own anything anyway. They where a licensing service for Novell, and where in default of that contract.

  9. Anonymous Coward
    Anonymous Coward

    Microsoft loses Supreme patent fight over Word

    The only way there will be software patent abolition is for the big patent holders like MS, IBM, Apple etc. to lobby for it. The only way for that to happen is for them to get hit where it hurts.

    1. Anonymous Coward
      Anonymous Coward

      You forget the USPTO and the lawyers

      It is not so much the Big Corps that love the patent system. The USPTO and the patent lawyers love the system just as it is. Any committees formed to modify the current system will largely be made of current patent legal experts. ie the patent lawyers.

      Sure the patent lawyers make money from helping to register patents, but the really big money comes when patents are contested. Low quality patents result in more contests and thus more legal fees, so what's not to like about them?

      USPTO is also one of very few parts of Uncle Sam that actually make any income. They get the same fees regardless of the quality of the patent. With no feedback, that's not going to change either.

      In short, we're screwed until the US collapses and a New World Order that ignores patents emerges

  10. Anonymous Coward
    Thumb Up


    This was a good outcome - however, the entire US software patent system need review. UK / European law might be a better model.

    1. Pascal Monett Silver badge

      "the entire US software patent system need review"

      I agree, albeit with one caveat : Microsoft is not the one that should be doing the review.

    2. KroSha

      Yes, to a point

      but the UK system needs an overhaul as well.

  11. stizzleswick

    Hoist by their own...

    petard, I guess. But come to think of it... how can there be any patents on XML (XML being an ISO approved open standard)? Or are the patents pertaining to methods of manipulating XML?

    1. Oninoshiko


      the patents in question are for vary specific manipulations to XML, that is only of any relevance to one market (healthcare record keeping, IIRC). I4i wrote a plugin for Office which MS made irrelevant by integrating the feature. IIRC I4i tried to tell them "if you want to do that, you'll have to license the patent" but MS ignored them and it got ugly.

  12. Ken Hagan Gold badge

    Cognitive dissonance?

    Dissonance by arse. Its democracy plus the rule of law. You get to lobby for changes to the law, but until you are successful, you have to play by the old rules.

    If you don't like it, there are a handful of places in the world where they don't have either and I'm sure if you offered to swap with one of the poor souls who live there, they'd readily agree.

    I'm amused by the Supremes' decision that the burden of proof lies with the challenger. Perhaps no-one has told them that the law requires the USPTO to take the opposite view when granting them in the first place -- the benefit of the doubt goes to the applicant.

    As for Microsoft, it would be lovely to think that they are currently running the numbers and deciding that the current system of legal Russian roulette has now reached the point of unbearability, but I won't hold my breath.

  13. Ian Michael Gumby

    Lawyer Logic

    Today's lawyers are trained to do what it takes to argue the case in front of them.

    Not to do what is right.

    So you can have a lawyer argue one side of the argument for one case, defending Microsoft's abuse of the patent system, and then in the next case, argue the exact opposite. If it means a win for Microsoft. (Meaning that the lawyer is Microsoft's lawyer.)

    If Microsoft wants true software patent reform, then they should be pushing to toss out all of the patents given to software systems and business processes.

    1. Magnus_Pym

      Todays lawyers?

      That is the way the law works. It is an adversarial system. To do otherwise would require the judgement to come first and the argument afterwards. That is not the problem. The problem is that the law is just too bloody expensive for anyone but the richest to use.

  14. RW

    The Greeks had a word for it

    And so do the lawyers: estoppel.

    It's a legal doctrine that you can't today argue "X" in court, then turn around and argue "not X" tomorrow.

    A canny lawyer might be able to make MS quite miserable over this, or so it seems to me.

    1. Sam Liddicott

      well you can...

      You can do that if the judge set not-X first. Then you are respecting and supporting the decision of the courts.

    2. Tom 13

      That's funny,

      when I watch lawyers at work , they always seem to be flip-flopping their arguments depending on who their client is.

  15. Anonymous Coward


    The more small companies and various patent trolls sue large corporations over such patents, the better. If they're hit by their own nuclear weapon for fighting of competitors, they may try to get rid of it altogether by lobbying.

  16. Anonymous Coward

    What is this, "Corporate Hypocrisy Day"??

    Ok, I thought it was really a juddgement call whether the article about Apple copying an independent developers wi-fi sync app was really an act of thievery on Apple's part. However, when I see Microsoft suddenly complaining about companies squatting on patents and how that holds back innovation, then I know that we have crossed the line into "Do as I say, not as I do" land!!

    This is the same Microsoft that (A) got worn down by Sun for writing its own flavor of Java?

    B) Extorts $5 a handset from Android phone makers over alledged MS IP that is in the Android operating system? C) tried to intimidate Linux developers into line with spurious threats around unspecified patented IP that was alledgedly in the Linux kernel?

  17. Homer 1

    Preponderance of FAIL

    Dear Congress,

    Please reform the patent system to make it easier for us to dismiss then steal everyone else's trivial ideas, but include a clause that protects Microsoft from same, otherwise we'd lose our entire patent portfolio overnight.


    Sweaty Ballmer.

  18. Anonymous Coward

    You reap what you sow...

    Or at least that's what I believe to be the saying in English..

    I never could respect the patents as they are being used in the US; and I think software patents are even worse. IMO all its good for is money. Companies apply for a load of (often dumb) patents and when they stumble upon another competitor which happens to use something possibly matching their patent its "I'll sue!".

    Good thing all that nonsense doesn't apply here in Europe. Sure; we also have patent systems, but they work a little different...

    As to MS.. IMO they got what they had coming.

  19. The BigYin


    And buckets of it. After decades of using patents as a weapon to crush opposition and stifle innovation, MS have just got bitten on the ass by their own tactic. I can't say I am sorry.

    The fact that they are trying to spin this into them being the wounded party and now a fighter for patent reform is laughable. These are the very same people who are blowing a gasket about the attempt to reverse-engineer the Skype protocol (to pick one example) and continue to use patent threats (Android, Linux, MPEG....).

    Bend over and take your medicine, MS. You were part of making this problem, you are still part of this problem and you can never be part of the solution unless you walk the walk and much as you talk the talk.

  20. Marcus Aurelius

    i4i patent

    AFAIK is an XML transformation system and thus it should be possible to reduce the patent to a mathematical formula. Once you've done that the patent is invalid as maths formulae are not patentable.

    1. The BigYin

      Unless you are in the USA...

      ...where they are.

  21. Mostor Astrakan

    The Yiddish Word for this is...


  22. Anonymous Coward 99

    Never really understood this one

    So Microsoft were sued, for implementing an "obvious" way of embedding custom data structures into their document format using XML - a system designed specifically to build custom data structures, then remove it without any apparent consumer harm from their product (thus implying it is relatively valueless technology) - and still get hit for $200 big ones.

    It always sounded almost as stupid as the US Patient decision to allow patenting the CONCEPT that Potatoes could be genetically engineered.

  23. CPU

    Hi, I'm a very ticked off 800lb gorilla

    I think what M$ meant to say was " [as the 800lb gorilla] would now concentrate on trying reform US law to prevent abuses of the patent system, so that it would win every future legal battle, because Steve is a fluffy bunny who gives candy to sick children and helps little old ladies across the road".

    I'm off to patent the idea for transporting people without moving by disassembling their molecules (dis-integrator), moving them to another locaion by high capacity network, and re-assembling their molecules in their original order (re-integrator), and I'll be suing anyone who actually makes this work for real ¬_¬

  24. Anonymous Coward
    Anonymous Coward


    Ok, so maybe I'm reading this wrong...but we've got a case here of a small company making something and then a big company coming along and just stomping all over the small one, taking their work and making a shed load of money out of it. The small company complains, wins it's case and gets redress...

    Isn't that what the whole point of patent protection is?

    If you're arguing that all software patents are wrong, then don't complain when you invent something and someone richer comes along, nicks the idea/design then markets it using resources you don't have - you're the small guy remember - and gets all the money. You, the mere inventer would get nothing.

    1. PT

      But... but ...

      In the majority of cases this is what happens anyway, regardless of whether you have a patent. Defending it through the courts is beyond the means of anyone without a huge pot of money or a VC backer, and even in those cases it can be a Pyrrhic victory where the costs outweigh the benefits. This is particularly true in the US, where costs are seldom granted.

      Since abolishing software patents will scarcely impact the little guy, I can't see the AC's argument has any merit.

  25. Anonymous Coward

    Actually, this may have a flip side.....

    ....if someone as powerful as MS turn round and say the US patent system is f**ked, then someone may actually take notice.

    Big goverment doesn't listen to the little man, but to the big corps.

    A lot of patents the like of Apple / MS file are preventative fillings. They often of no intention of using them, but it's to prevent others from doing it.

    The whole systems screwed and maybe it will like it or not, need someone like MS to get someone to take notice.

  26. KroSha


    "We will continue to advocate for changes to the law that will prevent abuse of the patent system and protect inventors who hold patents representing true innovation."

    Mentally add in the ", as long as we're not suing them" at the end there. The /entire/ US software patent system stifles true innovation.

  27. paulc

    Eat their cake and have it too???

    ah yes... Microsoft want patent reform, but patent reform such that software patents remain legitimate... typical... They'd have stood far more chance of fighting the patent if they'd gone for the jugular and had all software patents revoked as a non-patentable field... but they wanted to keep their own patents in place...

  28. Head
    Thumb Up


    Nearly as big as the award to a Sydney guy for inventing the '30 day trial before having to register' application that MS stole, and paid about 350 mil for.

  29. Don Mitchell

    A much needed reform in patent law has been lost

    A lot of computer companies were backing Microsoft on this case, because it involved a much needed change to patent law. it's too bad that in the gleeful bashing of Microsoft, that is being overlooked. This has been an important case in IP law, a lot more important than the arguments of Linux vs. Windows fanboys. This would have made it easier for everyone to invalidate bad patents, and the system if choked with patents of obvious ideas and already-published ideas. This ruling against Microsoft was not good news.

  30. Gleb
    Thumb Down

    How predictible

    I came to the comments section to see people debate if i4i had a real case or not, but it's same-old Microsoft bashing without context. Additionally I object to Microsoft being seen as an irreducible entity - some of the world's smartest people work there, so I think they might have enough in-house innovation to go around. That said, maybe they did steal this genius i4i invention, as is certainly apparent from the tone of this discussion, but it's argued as "obvious", and to me it isn't.

    1. Vic

      Re: How predictible

      > I came to the comments section to see people debate if i4i had a real case or not

      Well, there's your mistake, then.

      i4i had a real case. They prosecuted it, and won. Microsoft had several stabs at appealing that win, and lost every time.

      The debate is not about whether or not they had a case - they very clearly did - but about whether or not they *should have* had a case. IMO, they should not - but US law as it currently stands gives them one.

      Until the US patent system is sorted out, using the XML markup language[1] to create markup will be patentable. And that is idiotic. But that is the law.


      Yes, I know. I repeated the ML bit for emphasis.

  31. Steven Jones

    The system will not change any time soon...

    The US are not going to substantively change their law regarding the patenting of software concepts until such time as it's perceived to threaten their financial interests. Among other things, the legal profession are hardly likely to support the killing of a system that regularly provided them with a lucrative income. Given the number of lawyers in US politics, then they aren't likely to kill this particular golden goose.

    Some might argue that this doesn't matter too much if the rest of the World doesn't allow patenting of software (with a few exceptions). However, given the domination of the software world by major US corporations, and the requirement to operate in the World's largest market, I rather suspect the rest of us are going to have to live with the stifling effects of this system on competition, innovation and innovation. It also has the effect of raising entry barriers to smaller companies introducing new products as they are very likely to fall foul of one of these widely-drawn patents owned by the big players. The only small companies that do well out of this are the patent trolls of course whose business models depend on monetizing their IPRs and not actually developing products.

    All this will only change when one of the really big countries, like China or India decides that they don't need to play along with this and can service their own internal and selected export markets not covered by this patent system.

  32. Torben Mogensen

    Fight to change the rules, but don't ignore them until they do.

    I don't really see MS or any other big company as inherently evil for using the patent law, even if they are trying to change it. Of course, there is a thin line between use and abuse, but if the abuse is legal and done by everyone, it would be daft to unilaterally stop doing so. And blatant abuse might even be the best way to get things changed. This is certainly true in other areas: The fastest way to get taxation laws changed is to abuse them.

    The real culprit is, of course, the patent system. It is much too easy and cheap to get a patent compared to the difficulty and expense of challenging one. One symptom of this is that a company that is sued for infringing a patent is more likely to succeed by counter-suing the patent holder for abusing another patent (and then settle a patent swap out of court) than by challenging the patent.

    This can be solved in several ways: Make it more difficult to get a patent, make it easier to challenge one, abolish patents in areas where abuse is prevalent or a combination of the three.

  33. IceMage

    Patent Law Abuse

    Patents are being abused overall. A patent is granted by divulging trade secrets with the government in return for protection from someone stealing the idea. The fact of the matter is, most of the crap that the government grants patents for, they'll never use. I think the test for granting a patent should be "Can the government use this in a time of war? No? No patent. Yes? Ok, normal patent procedure."

    Fixes most of the problems with the patent system. I hardly see how the government would be unable to format XML without a patent, divulging the secrets of how they did it, if they really needed a solution. Hell, implementing their solution as per their patent would probably take longer than creating their own.

  34. Tom 13

    Even though it comes from MS,

    I think the preponderance of evidence standard is the correct one for patent litigation. Even so, SCOTUS still rendered the correct verdict, because it is for the legislature to decide what standards apply in a given statue, not the courts.

    Frankly, the US patent system is a mess, and needs a complete overhaul. Only problem is, given the current set of engineers and mechanics working on the project, I'm afraid the new and improved system will be even worse than the current one.

  35. Anonymous Coward
    Anonymous Coward

    Summary of the actual case

    Basically, MS wanted to lower the burden of proof of invalidity.

  36. D. M

    What goes around, comes around.

    The whole software and idea of patent for business process, must die.

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