Open Source Society claims patent win

But Microsoft has amended its patent and the society is no longer concerned about it

The New Zealand Open Source Society (NZOSS) is claiming a moral victory over Microsoft’s patent of XML schema after the software giant made changes to its patent.

In July last year the society lodged an objection to Microsoft’s patent which governs “word processing document[s] stored in a single XML file that may be manipulated by applications that understand XML”.

Now, however, Microsoft has amended its patent and the society’s president, Peter Harrison, says the changes are such that the society is no longer concerned about it.

“The patent will no longer cover the XML file formats that Microsoft is using and therefore anyone is free to interoperate with Microsoft file formats without fear of patent litigation from this particular patent”.

The society had spent some time researching prior art before lodging its appeal in New Zealand, only to discover that a similar objection had been lodged in the US.

However, Harrison says the society wanted to press on with its objection in the hopes of limiting the scope of the patent. At the time, Harrison told Computerworld he wanted to ensure no patent was granted that was too broad in nature, thus posing a threat to innovation and development in the software industry.

“The decision to target obvious patents was made at the 2004 AGM of the NZOSS. From this decision an analysis was performed on many software patents that potentially could have been opposed. The NZOSS chose the Microsoft word processing XML patent because of clear prior art that invalidated it and the potential for the patent to greatly impact on software innovation in New Zealand”.

Microsoft’s director of innovation, Brett Roberts, says the world has moved on considerably since July last year and the licence agreement Microsoft put in place surrounding its patent includes a “covenant not to sue” which would have ensured the patent didn’t restrict the use of XML in any way.

“Basically it means we would offer everyone the ability to use the patent without ever charging for it in any way. I’m surprised [NZOSS] didn’t realise that.”

The patent process allows a company to make a counter-statement, followed by an amendment to any patent application.

Harrison says Microsoft made “significant changes” so that the prior art the society uncovered, primarily in the form of word processor Abiword’s handling of XML, would no longer apply.

“For example, templates stored in binary blocks inside the document were now a required feature to infringe the patent,” says Harrison.

NZOSS won’t object further to this patent. However, Harrison says that’s not the end of the society’s involvement in the patent process.

“We will be lobbying hard to ensure that the Patent Bill currently before parliament toughens up on obvious patents.”

Harrison says that objective is also shared by Microsoft and IBM.

“We also continue an active examination of software patents filed, and potentially could file oppositions in future if the interests of open source and the software industry are threatened again by obvious patents,” says Harrison.

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