Microsoft's Word Patent Woes May Be Broadly Shared
Few things must be more emotionally paradoxical for the anti-patentistas of the world than to see Microsoft get clobbered on a patent infringement action. Do you rejoice because one of the great advocates, and enforcers …
Context & Ripple Effects
Two years before this column, Microsoft cast itself as software's most aggressive patent enforcer, announcing a royalty campaign against the open-source ecosystem in what Fortune called 'Microsoft takes on the free world' — a move critics, including the New York Times' editorial page, dismissed as a legal fiction rather than a real infringement claim.
Now, in August 2009, the tables have turned: Microsoft itself has been 'clobbered' in a patent infringement action over Word, and Brian Prentice frames the awkward position this puts anti-patent advocates in — the company they most enjoyed seeing enforce patents has just been enforced against. The episode matters because it tests whether the patent system Microsoft championed protects incumbents or exposes them.
First-order effects
- Microsoft's flagship Word franchise now carries a live infringement verdict, forcing its legal team to defend or work around patented functionality inside the product its enterprise base runs on.
- The loss hands ammunition to opponents of Microsoft's 2007 royalty push against open source, since the company can no longer present itself as a clean-handed plaintiff.
Second-order effects
- Rival office-suite and document-format vendors can argue that Microsoft's own portfolio does not confer immunity, weakening the leverage behind future licensing demands of the kind mounted in the 'free world' campaign.
- Enterprise buyers weighing Office renewals gain a new diligence question — whether court-ordered design changes could disrupt documents and workflows built on Word's affected features.
Third-order effects
- If a top enforcement-driven IP shop can lose on its own home turf, the pattern points toward broader questioning of software-patent breadth — exactly the critique the Times leveled at Microsoft's 2007 claims — with pressure building for courts and Congress to narrow what such patents cover.
The trend: Software patent litigation is cutting both ways for large vendors: the enforcement apparatus Microsoft helped normalize increasingly exposes incumbents' own products to infringement suits.