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I heard about the Supreme Court's decision today in the Microsoft vs. i4i case, so I read the relevant patent and was surprised it appears to just keep formatting codes in a separate table with pointers instead of leaving the formatting codes embedded in the text.

I'm surprised no one else did that before 1998, thereby invalidating the patent, and that Microsoft couldn't uncover an example of such a system.

I recall a micro-based word processor a friend and I were going to build in the 70's (never finished because the hardware never worked), and I definitely considered the tradeoff between keeping format stuff separate vs. embedded, so I would think someone in the subsequent 20 years (if not before) did likewise and actually wrote such a system.

Didn't anyone implement formatting codes separate from the text before 1998?

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Of course they did, and in the real world where software patents don't exist (read everywhere but the USA) this isn't an issue. But perhaps this is one for slashdot? – nbt Jun 10 '11 at 0:16
Wouldn't a patent have to be more specific than just putting formating in a separate table? – JeffO Jun 10 '11 at 1:19

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From what I can see, Microsoft put little or no effort into invalidating the patent on such grounds. Instead, they concentrated on one argument: that the inventors listed on the patent had written and sold a product ("S4") more than a year prior to filing for the patent, that Microsoft claimed may have implemented it -- but its source code is long gone, so they had little (if any) evidence of its having done so.

The inventors both testified that it didn't; Microsoft's counterclaim was that since S4 was never presented to the Patent and Trademark Office, the burden of proof to show that it implemented the patent was reduced from the "clear and convincing" level normally applied to invalidating a patent to the "preponderance of the evidence" (aka "51%") level applied to most situations in civil cases.

When all was said and done, all the Supreme Court did was upheld what they'd been saying for roughly a century: that though the wording has varied slightly (e.g., "clear and cogent" vs. "clear and convincing"), that if you want to get an issued patent declared invalid, you need to provide considerably stronger evidence than for most other situations in civil cases (though still less than the "beyond a reasonable doubt" level that applies to most criminal cases).

At least to me, it looks like Microsoft decided to do a bit of "long shot" gambling, taking the chance of losing the case in the hope of doing a bit of common-law reform of the patent system that (if they'd won) would have made it much easier to invalidate patents.

If they'd presented clear evidence of prior art that invalidated the patent, that would have won this case, but deprived them of the chance at changing patent law in general.

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Not just a "long shot", but a $290 million long shot. – mike Jun 10 '11 at 15:31

Lots of people did (myself included). The i4i patent is a lot more specific than that.

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I don't know how many "lots" is, but apparently not enough to influence the case. I also can't determine what specificity you mean; the case has been fairly generally applied to XML. – mike Jun 10 '11 at 15:30
All it takes is 1 to have prior art. And the new office file formats are still XML files inside a zip file and there is still data substitution in the files via XPath. I talked about the limits of its impact at… – David Thielen Jun 10 '11 at 16:47

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