MS’s XML patent creates waves

An application by Microsoft for a New Zealand patent governing the use of XML and word processor applications will be objected to just as soon as anyone can see what exactly the patent covers.

An application by Microsoft for a New Zealand patent governing the use of XML and word processor applications will be objected to just as soon as anyone can see what exactly the patent covers.

The New Zealand Open Source Society president, Peter Harrison, says he discovered the patent while researching Microsoft’s moves towards licensing the FAT file system.

The patent is currently under examination by the Intellectual Property Office (IPONZ) and few details are available. The patent title says it covers a “Word-processing document stored in a single XML file that may be manipulated by applications that understand XML”. Harrison says with such little information it’s hard to object to the patent in any constructive manner.

“It’s a chicken and egg scenario — you can’t object till you’ve seen the patent in detail and you can’t see the patent in detail until the office has reviewed it.”

Basing his opinion on what information is available, Harrison hopes the patent won’t be passed.

“You’d have to question whether it could be patented, as the intent of XML is to do exactly what this describes” — facilitate data interchange. To patent its use in specific situations “seems to me to be ludicrous”.

IPONZ’s manager of patents and plant variety rights, Maitlan Maltby, says the examination process could still take some time.

“Any issues we uncover will be raised with the applicant. It takes either 15 months or 18 months from the time of filing.”

Once it is accepted the patent is published both in print and on the IPONZ website, after which the public has three months to make a submission.

“If it passes through that stage it’s granted and sealed.”

Even then it is still possible to revoke a patent in New Zealand, although Maltby says this is more difficult as a higher level of proof is required.

Maltby says the current patent law does not include an “obviousness” clause unlike some overseas patent laws.

“That’s under review at the moment and later this year we’ll see what the new patent act looks like.”

Microsoft was unable to comment before deadline.

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