The Grounds for an Appeal

By Jeff Cogswell  |  Posted 2009-08-14 Print this article Print

The entire document is stored as XML, regardless of whether there's a feature allowing the users of Word to add further XML into a document. And the entire document must be read in by Word and parsed, possibly resulting in the creation of a metacode data structure. So why did the judge and jury focus on this rather superficial aspect?

Did they even understand that the underlying .docx format is a .zip file with all the text encoded in XML, and that the portion of Word where users can add on their own "custom" XML is pretty irrelevant to separating out the content from the formatting?

Did they understand that there's an underlying file format that looks quite different from the document as rendered on the screen? I can't say, but it does make me question whether the jury and judge truly understood the technology; it's almost as if they misunderstood the "custom XML" feature of Word and its XML Structure pane, and thought that that was somehow related to formatting the text in Word. If that's the case, then the jury was clearly misinformed.

But one interesting aspect in the memorandum is that it describes how there was a good bit of debate between the two sides on whether or not Word creates a data structure internally that effectively performs the same work as the metacode map technique described in the patent. The judge, writing in the memorandum, makes it clear that he feels that if the data structure ultimately performs the same task, then the software is in violation due to what he calls the "doctrine of equivalents."

So, does Word create such a structure? Without looking at the source code, there's no way to know. We could guess; we could say it would make sense to create such a structure, but without looking at the actual source code, we cannot know and are only speculating.

If it does create one, then perhaps Word is in violation of the patent-not just the custom XML aspect of Word, but the entire product. But if not, if there's no such separation between the formatting and the text, then Word probably isn't in violation-even with the custom XML feature being present.

But one thing seems clear to me: The custom XML feature is quite irrelevant to the case. Microsoft says it will appeal. An appeal could either hurt or help the company. On appeal, a court may determine that the custom XML aspect is irrelevant as I've claimed here.

Then they could either claim the entire product is in violation (not just the XML Structure pane, which could be removed from future versions), or they could claim the product is not at all in violation. As such, Microsoft has some huge decisions to make on how to move forward, as its entire Word product could be at risk.

Jeff Cogswell is the author of Designing Highly Useable Software ( among other books and is the owner/operator of CogsMedia Training and Consulting.Currently Jeff is a senior editor with Ziff Davis Enterprise. Prior to joining Ziff, he spent about 15 years as a software engineer, working on Windows and Unix systems, mastering C++, PHP, and ASP.NET development. He has written over a dozen books.

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