Microsoft Loses Office Patent Dispute

cwolfsheep writes "According to CNet, Microsoft has lost a patent dispute with a developer involving the company's Excel and Access product lines; specifically how they interact via spreadsheets. Carlos Armando Amado had filed a patent in 1994: the dispute covers Microsoft's products from March 1997 to July 2003. Office 2003 users will need to upgrade to Service Pack 2; Office XP users will need to apply a patch."

Apply this patch to remove functionality!

Um, no thanks.

The article should say that Microsoft had to release said patch. Users of Microsoft products are under no obligation to actually apply the patch and remove functionality.

Re:Apply this patch to remove functionality!

Users of Microsoft products are under no obligation to actually apply the patch and remove functionality.

Actually, I think you might be under just such an obligation. You're still using the patented technology without a licence.

Never underestimate the perversity of patent law.

Re:Apply this patch to remove functionality!

Actually, I think you might be under just such an obligation.

Technically, you're right, but practically nobody is ever going to come and get you. Besides, the courts issue decisions, but they don't enforce them. It will be up to the patent holder to hunt you down and get the authorities to punish you.

Now, what was that Microsoft was saying?

Something about how commercial software was superior to Free Software because it indemnified users [computerworld.com] against patent infringment?

So much for that argument!

Re:Now, what was that Microsoft was saying?

The end users are still indemnified. They're not getting sued. Microsoft never said THEY were indemnified. There's an article here [com.com] that covers some recent changes to the indemnity clause that business licensees get. I dunno if that extends to people with individual licenses, though.

Re:Now, what was that Microsoft was saying?

However, end users are being (more or less) forced to install a patch that removes the patented technology. Any genuine indemnification would mean that end users could refuse to install the patch and Microsoft would accept liability for any lawsuits that might occur.

Now, is Microsoft doing that, or is the whole "indemnification" thing a big pile of horse shit?>

Given this post [slashdot.org], it apparently is.

Re:Now, what was that Microsoft was saying?

'As-is' is exactly right, same as if you're buying a used car from a dirt lot. If you read your MS licenses carefully, you will find that they specifically avoid claiming that the software will allow you to type a sentence, add two numbers, or draw a straight line.

In practical terms, you are actually licencing a product that is not guaranteed to *DO* anything at all. Any functionality you might use is just gravy you should be grateful for. So from a licensing standpoint, they owe you nothing in terms of continued functionality of any kind, because they never promised you any functionality in the first place.

I had a professor who used to read a software license, but replaced the words 'software application' with 'Ford car' wherever they occurred. The effect was hysterical -- it wasn't guaranteed to do anything, wasn't guaranteed not to crash, not to have defects, etc. Try it sometime, it's a good brain exercise.

Re:Apply this patch to remove functionality!

35 U.S.C. 271(a):
Except as otherwise provided in this title [35 USC 1 et seq.], whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
(emphasis mine)

Apply this patch to maintain licensing!

We received an email from Microsoft licensing last week that addresses this issue.

Here's the text:

Background:

It was recently decided in a court of law that certain portions of code found in Microsoft Office Professional Edition 2003, Microsoft Office Access 2003, Microsoft Office XP Professional and Microsoft Access 2002 infringe a third-party patent. As a result, Microsoft must make available a revised version of these products with the allegedly infringing code replaced.

Action required:

As a result of the above ruling, you are required to:

Install Microsoft Office 2003 Service Pack 2 (Office 2003 SP2) for all your future deployments of Office Professional Edition 2003 and Office Access 2003, Install the Microsoft Office XP Service Pack 3 Patch (Office XP SP3 Patch) for all your future deployments of Office XP Professional and Access 2002

Action requested:

To keep your current systems in alignment with your future deployments of these products, Microsoft is requesting that you also update all your current Office Professional Edition 2003 and Office Access 2003 installations with Office 2003 SP2, and Office XP Professional and Access 2002 installations with the Office XP SP3 Patch.

How do I do this?:

You can obtain both Office 2003 SP2 and the Office XP SP3 Patch by going to the website listed below and downloading it directly, or by contacting your reseller.

Please visit our site at http://office.microsoft.com/en-us/officeupdate/def ault.aspx [microsoft.com].

Sincerely,

Microsoft Licensing, GP This makes it seem like we are being forced to upgrade to maintain licensing.

Re:Apply this patch to remove functionality!

You think that you will have much of a choice? Since Microsoft's patch mechanism supports pre-requisites so that one patch can require another, what's the bet that all future Office patches will require that the patent compliance patch be installed first? That leaves you the rhetorical question of which is going to provide the lesser pain to a PC with Office installed; leaving a feature you possibly never used anyway in place, or being vulnerable to the latest exploit. Good luck if you are opting for the latter, that's all I can say.

My guess is that Microsoft will throw its customers a bone by making the patch optional for a month or two and then start requiring it for all subsequent Office patches. Come the first serious exploit after that, and you'd better not be reliant on the Access-Excel data connectivity that's being removed unless you are really sure of your anti-virus and other network security systems.

Re:Apply this patch to remove functionality!

And how about this:

"It was recently decided in a court of law that certain portions of code found in Microsoft Office Professional Edition 2003, Microsoft Office Access 2003, Microsoft Office XP Professional and Microsoft Access 2002 infringe a third-party patent," Microsoft said in an e-mail to customers. "As a result, Microsoft must make available a revised version of these products with the allegedly infringing code replaced."

Allegedly? No...not allegedly, definitively. It went to court, and the plaintiff was able to prove infringement. It's not alleged, it's legally proven fact. Talk about weasel-words...

I don't think so.

Patches are for pirates!

Whose problem is this?

Microsoft violated the patent, not me. I bought a copy of the software as it was - and if they have to alter it because they made a mistake then that's their problem. I should not be required to change the software in order to help them cover.

Are you required to install security patches? Many sysadmins have a wait-and-see approach to major updates for good reason. Is this any different?

Am I using infringing code? Yes. Is it my responsibility to ensure that I'm not? I don't believe so. Not only is this software that I've licensed from Microsoft, but it's not like I have the option of reviewing the source code.

I'm curious if there's a precedent regarding this kind of situation.

Re:Whose problem is this?

Are you required to install security patches?

You haven't read the liscencing agreement, it seems.

The TOS states alot of things, like your sacred duty to grab a skullbat and assist in the Cleansing when Gazuga appears. It's all in there.

Re:Whose problem is this?

You have now been notified that you are taking action to violate a patent. Microsoft office as sold and supported by Microsoft does not violate that patent. Hence your actions are a deliberate patent violation.

Re:Whose problem is this?

You are taking all legal liability for the Microsoft product infringing any patent or copyright claim

I call BS on that. I don't take any legal liability unless enter into a contract stating that I accept such potential liabiity BEFORE the sale. And the EULA click-thru doesn't count - its too late to add terms to an agreement after the sale.

And yes, I do negotiate IP licenses for a living...

... then you should know better. You can't unilaterally change the deal after its been concluded. Once someone bought it, that's it. They are under no obligation to anything more than they already agreed to.

... or are you going to argue that a EULA that says "Failure to comply with these conditions, which you didn't know about prior to sale, will result in friggin' sharks with lasers strapped to their heads paying you and yours a visit".

From the Microsoft EULA:

"THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT."

The key word in there is "non-infringement." You are taking all legal liability for the Microsoft product infringing any patent or copyright claim, should such a claim exist. Microsoft will not indemnify you.

Again, not the buyers problem. Like all contracts, there are 3 important rules:

1. get it in writing
2. get it in writing
3. get it in writing

... I don't think Microsoft can show a copy of ANYONE's signature on a click-through EULA. Let them tell it to the judge how "oh, e added these conditions AFTER they bought the software, and we don't have a copy of their agreeing to them, but they MUST have ..."

That'll go over real well, especially since both common law and consumer protection legislation requires you to warrant what you sell.

Who does /. hate more?

The guy who patented interaction with a spread sheet, or Microsoft?

-Rick

Re:Who does /. hate more?

The US government for granting software patents.

I submitted the story the last time...

Microsoft found guilty of patent infringement [slashdot.org].

Here are the relevant links:

http://www.theregister.co.uk/2005/05/18/microsoft_ court_excel/ [theregister.co.uk]
http://www.theregister.co.uk/2005/06/07/microsoft_ pays_excel_man/ [theregister.co.uk]

The story goes like this:

Carlos Armando Amado filed a patent in 1990 for software which lets users move data between Excel to Access via a spreadsheet. He tried to sell it to Microsoft two years later, but they rejected it. Then it turns out that they DID use his software behind his back, without paying him a dime.

This is not like the EOLAS plugin patent. This is an idea that Microsoft STOLE and got rich with. Microsoft is the one to blame, not Carlos Amado. (They could as well have licensed his technology or simply use an alternative, but did they?)

WHAT functionality?

This story doesn't exactly mention what functionality the patch removes. But there is another article about it here with a bit more information:

http://www.theregister.co.uk/2005/06/07/microsoft_ pays_excel_man/ [theregister.co.uk]

"In 1990 Carlos Armando Amado filed a patent for software which helped transfer data between Excel spreadsheets and Microsoft's Access database using a single spreadsheet. He said he tried to sell this technology to Microsoft in 1992 but they turned him down. According to Amado, Microsoft started including his software in their releases between 1995 and 2002."

What about OO.org?

Is OpenOffice affected by this?

Patching to Remove Functionality

This sounds like it is becoming Microsoft's new patching practice. First patch Tuesday, which works great until a zero day issue occurs. Now we have blackhole patches; these suck functionality out of your product (both with the Xbox 360 and now office). I for one would like to thank Microsoft for removing functionality I use - as opposed to the other 90% of functions in your Office software which are bloatware and are rarely used.

Re:What does it change?

Never mind, went deeper and answered my own question:
"Microsoft has released an update for Microsoft Access 2002. This update removes the functionality in Access 2002 that lets users add new data to or edit existing data in a linked Microsoft Excel worksheet."
 
Two words: Hell no. That's not a "small" part of the market segment, IMO.

Re:Show me the money?

He was originally asking $500 million, a sum that I would consider "tons of $$$". Microsoft claims that they had been working in-house on the capability to add the linking since 1989, and Mr Amado approached them with a working product in 1992. From other research, it appears that the "trick" in question is to link an Excel document from Access in read/write mode as an in-line table, something we all take for granted in the modern Office versions.

Microsoft said no thanks at the time, and released their in-house work in 1995 with the release of Office95. The jury decided that there wasn't sufficent evidence that Microsoft was in the clear, so they settled for $9 million and an agreement to cease using the technology.

Re:Beginning of the end of 'Lord Microsoft'

I give you these 15...CRASH...10 commandments!