OSS group claims Microsoft patent victory

By   |  August 28, 2006

The New Zealand Open Source Society(NZOSS) has claimed a moral victory in the patent office after Microsoft amended its patent on XML schema. NZOSS president Peter Harrison says the changes made to the patent were such that the organisation was no longer concerned about the threat posed by the patent.

In South Africa, however, the patent has been granted in its original form and is still being challenged by local free software advocates. Bob Jolliffe, a founder of Freedom to Innovate South Africa, says the victory in New Zealand does not fundamentally alter the situation in South Africa.

“The New Zealand challenge has done really well to push Microsoft to this point,” says Jollife. “In South Africa, however, the situation is very different. Our aim was never to challenge any particular company or patent but always aimed at challenging the broader interpretation of the software and business method exclusion clauses in our patent act.

The Microsoft patent XML patent suggested itself as as a target because of “clear vulnerabilities”, says Jolliffe.

Jolliffe says he believes that Microsoft realises the patent is unstable and that following repeated rejections of the patent in the US the company has been forced to retract their position in NZ to match that in the US.

“I’m fairly sure that if we approached Microsoft now they would be willing to amend the patent,” said Jolliffe. “But I’m nt sure that is the best approach. By doing so we may be legitimising what remains of the patent.”

NZOSS’s Harrison says the ideal outcome for the organisation would also have been a rejection of the patent. “However Microsoft cleverly amended the patent in such a way that Abiword, the primary evidence of prior use, was no longer evidence of prior use. It would have been an uncertain outcome if we proceeded on that basis.

“The outcome effectively removed the threat of Microsoft using the patent against those who read or write files in MS XML formats, and so I am personally content with the result.

Harrison agrees with Jolliffe that the US rejection and the strength of the New Zealand filing against the patent drove Microsoft to make the changes. “They had no alternative after we filed a comprehensive opposition that clearly identified prior use,” says Harrison. “The US Patent Office rejected the patent in the US for many of the same reasons we opposed it in New Zealand, although the research of the US patent office and our own research was independent.”

Computerworld quotes Microsoft’s director of innovation, Brett Roberts, saying “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,” says Roberts.

Harrison says the organisation’s involvement with software patents is far from over and that they will continue to lobby for a tougher stance against “obvious” patents. He also says they will continue to review patents already granted to and possibly look at challenging any that threaten the software industry.

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