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."

Comments

Apply this patch to remove functionality!

[ivan256]

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!

[Anonymous Coward]

I found this odd: "Although existing customers can keep using older versions on current machines, any new installations of Office 2003 will require Service Pack 2, released by Microsoft in September. Office XP will need to be put into use with a special patch applied."

They're making it sound like you won't even be able to use new installs of those versions. Although, I guess with product activation, that may be exactly what they mean...

Re:Apply this patch to remove functionality!

[meringuoid]

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!

[borawjm]

I'm confused and, pardon my ignorance, but didn't Microsoft just pay $8.9 million to cover this?

Re:Apply this patch to remove functionality!

[bemenaker]

RTFA If Microsoft is saying you don't have to apply the patch, then the judge ruling stated that.

Re:Apply this patch to remove functionality!

[voice_of_all_reason]

I applaud Microsoft for not doing what I would have done in this situation: pull a Google and ignore the court's demand.

Two different things. Allow me to analogize with Law and Order:

The google issue is Detective Briscoe going up to your home and saying "Someone said you sell crack here. Mind if I take a look around?" You have every right to refuse.

The microsoft issue is Detective Briscoe going up to your home and saying "I found this videotape of you selling crack here. Here's my search warrant. I'll let myself in, thanks."

In other words, a request and a ruling from the court are opposite ends of the judicial process.

Re:Apply this patch to remove functionality!

['nother poster]

Yes. I remember. The mechanism for that innovation was to grant a limited time monopoly. This was to allow the inventor time to attempt to capitalize on their invention by either producing it, or licensing it. Notice the license part? He doesn't need to produce a product. If someone else wants to use the patented item, they have to pay a license. Because of the limited time frame, the inventor would be forced to attempt to invent new things to continue gettinmg income in the future once the patent falls into the public domain.

Re:Apply this patch to remove functionality!

[ivan256]

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.

Re:Apply this patch to remove functionality!

[Like2Byte]

The patch, according to MS site, says that it has been available since September 27, 2005. Since I upgraded my system in early January, 2006, I wasn't even aware of this issue until today. Therefore, I wasn't given (nor cared about) information pertaining to a patent issue.

Though, for those of us not connecting Excel and Access, who cares?

And, of course, Microsoft isn't about to publically humiliate themselves on their own website. What company would if not forced to do so by the conditions of a court ruling?

MS lost it's case. They issued a replacement and paid their fine - let's all move along.

Re:Apply this patch to remove functionality!

[Anonymous Coward]

No, they payed $8.9 million in damages for infringing the patent, not for a patent license. If they continue to infringe, they can get sued all over for more damages.

Re:Apply this patch to remove functionality!

[Anonymous Coward]

Which article did you read? Microsoft is ordering office XP and 2003 customers to immediately upgrade. That's the whole last half of the linked article, there.

Re:Apply this patch to remove functionality!

[Matt Perry]

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

The end user is under no obligation. The end user isn't the one that needs the license; Microsoft is. If Ford infringes on a patent with a part in their car it doesn't mean that they then have to replace all of those parts in every car sold. If you still feel otherwise please cite case law to support your assertion.

Re:Apply this patch to remove functionality!

[Zocalo]

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!

[Your Anus]

Yes but if the inventor investigates $BIGCORP, finds evidence they are still using the infringing software, and suqsequently sues the ass off said $BIGCORP, it will get the major companies to comply. Microsoft will indemnify $BIGCORP, but probably with the proviso that they apply the provided patches to "fix" the software (much the way you "fix" a dog).

Re:Apply this patch to remove functionality!

[drakaan]

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...

Re:Apply this patch to remove functionality!

[XScB]

Technically, you're right

But isn't it morally right too?

Not that anyone cares about such things.

Re:Apply this patch to remove functionality!

[jrp2]

"I applaud Microsoft for not doing what I would have done in this situation: pull a Google and ignore the court's demand. They are actually providing patches & updates to solve the problem. I wouldn't be so accomidating."

I do not applaud them at all. The "correct" thing to do here would be to license the patent and spare their customers from having to patch their code.

Maybe they tried and the patent holder was not reasonable, but I imagine had they thrown the guy a few more bucks (perhaps a nice round US$10 million) they could have just solved the problem and spared their customers a lot of stress and expense.

Re:Apply this patch to remove functionality!

[ajakk]

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)

Re:Apply this patch to remove functionality!

[mmalove]

So I read the article - as well as some comments below - help me understand where it says they are removing functionality? It looked to me like they said they are replacing the code?

If they are in fact removing the feature, count me one on the bandwagon that I'm not about to give up a feature I use just because Microsoft was dishonest.

Re:Apply this patch to remove functionality!

[DRJlaw]

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.

Not necessarily. It is appropriate to use allegedly so long as the judgment is not final. The judgment will not become final until Microsoft has exhausted or waived its right to appeal the jury's decision before higher courts such as the Federal Circuit and possibly the Supreme Court. If a higher court reverses the verdict, then "definitively" just became... bizarro world definitively.

Since Microsoft is already acting, you are probably correct, but for a somewhat different reason than the one you announced.

Re:Apply this patch to remove functionality!

[DRJlaw]

I just know that someone is going to slam me for using "final judgment" in a lay sense, probably for using "final judgment" incorrectly in the legal sense. The decision of the trial court after a verdict, motions, and all the rest is legally called a "final judgment". However, an appeal could result in an order that changes or could change the final judgment before it can be fully applied to the parties in the case. Strictly speaking, that's called enforcement and satisfaction. We all learned this in law school. Slashdot posters generally haven't, and are probably getting the same glassy stare that most would get if I began reciting the Old Testament in Aramaic. 'Nuf said.

Re:Apply this patch to remove functionality!

[Qzukk]

If Ford infringes on a patent with a part in their car it doesn't mean that they then have to replace all of those parts in every car sold. If you still feel otherwise please cite case law to support your assertion.

Funny you should mention Ford:

Nearly every car company fell into line to pay royalties to the Association for the privilege of making and selling cars.

Except Henry Ford. The association did not want another competitor in Detroit and it did not like his idea of driving prices down to where average people could afford a car. So it refused to license him. For Ford, it was either exit the industry or fight the Selden Patent in court. He decided to raise a legal war chest and fight the incumbents. The litigation lasted from 1903 until 1911 and along the way, the association launched hundreds of lawsuits against Ford's customers to scare them away from his showrooms for buying "unlicensed vehicles."

(from here)While in Ford's case he eventually proved that his vehicles don't infringe on the patent in question (his cars had more cylinders, iirc), Microsoft has already lost that battle.

In more modern times, it appears that Microsoft has had its customers sued over IP before: "Kremen could recall only one case where a plaintiff brought an intellectual property action against Microsoft's customers rather than the multi-billion dollar company."

Re:Apply this patch to remove functionality!

[Anonymous Brave Guy]

And what is otherwise provided in that title? I personally use dozens of patented things every day, yet I haven't made a single licensing agreement with any patent holder directly. Am I breaking the law every time I ever use a product covered by a patent? The patent system in the US can be daft at times, but it's not that daft.

Re:Apply this patch to remove functionality!

[ivan256]

Wouldn't it have been 'morally right' for Microsoft to offer a refund as an option to customers using this feature that they paid for?

Is it morally right for this third party to require microsoft to remove this feature when they don't offer a product with similar functionality? Is it moral to use patent law to deny technology to society?

I find it difficult to consider applying this patch to be the moral thing to do when taken in the context of the situation.

Re:Apply this patch to remove functionality!

[wagadog]

A: Actually, I think you might be under just such an obligation. [to apply the patch]
B: Technically, you're right, but practically nobody is ever going to come and get you.

Well, maybe there will be someone who volunteers to make threatening noises to the users who refuse to install the patch, on behalf of the original patent holder. They could demand audits, send in BSC-like goons, etc -- with the result being that Microsoft either publicly has to pay (indemnification) or publicly have to refuse to pay (highlighting the lack of indemnification). Either way, the public wins, the original patent holder wins, Free Software wins (everybody scared to run MS now) and, most importantly, MS loses.

Seems a bit obnoxious, but who ever said lawyers were nice people?

Re:Apply this patch to remove functionality!

[killjoe]

So does MS owe nothing for years of infringement? Does this patch remove any obligation they may have had for selling infringing products?

If so this seems perverted to me. Kind of not getting a speeding ticket because you have slowed down.

Re:Apply this patch to remove functionality!

[Matt Perry]

I said cite case law not the law itself. You know, decisions that support what you posted.

Re:Apply this patch to remove functionality!

[Matt Perry]

The analogy of a car is bogus. You buy a car and then you own it (let's ignore leasing for now).

I own my computer. I won't be compelled to install software updates.

The EULA could potential obligate you to comply.

There haven't been enough cases to legally solidify that statement.

Re:Apply this patch to remove functionality!

[Tmack]

Is it morally right for this third party to require microsoft to remove this feature when they don't offer a product with similar functionality? Is it moral to use patent law to deny technology to society?

Its not a matter of denying technology, Im sure the patent holder would allow Microsoft to continue using the patented software for a price. That is the whole reason for the patent system: Invent something, and have a legal way to keep others from selling your invention for their profit. If you create a work of art, is it moral for you to force all museums or Art stores displaying or selling coppies of it with some other artist's name to take those coppies down and/or stop selling them (and attempt to recover the ones sold)?

Tm

Re:Apply this patch to remove functionality!

[Jorgensen]

Morally right? Perhaps. But they have no obligation to do that. By "agreeing" to the so-called EULA you have given up any right to demand that (assuming you had that right in the first place...)

Anyway: would you really in your wildest dreams expect MS to do the "morally right thing" if it is going to cost them money and set a bad precedent? Next you might want a partial refund because of bugs! Or security holes! Naaah....

Re:Apply this patch to remove functionality!

[jrp2]

"So does MS owe nothing for years of infringement? Does this patch remove any obligation they may have had for selling infringing products?"

From the article:

"Microsoft was ordered to pay $8.9 million in damages for infringing Amado's 1994 patent. That award covered sales of Office between March 1997 and July 2003."

From what I gather, the US$8.9 mil is compensation for the actual infringement. It appears they chose not to (why is unclear) actually license the patent, so have to issue a patch to remove the infringing code. Had they licensed it, they would almost certainly not need to issue any patch.

So, to answer your question, they got punished, and the patent holder got compensated, for the patent infringement. The patch stops the infringement (at least if people apply it).

Re:Apply this patch to remove functionality!

[Cobralisk]

We all learned this in law school. Slashdot posters generally haven't, and are probably getting the same glassy stare that most would get if I began reciting the Old Testament in Aramaic.

Yes, on slashdot you need to recite the Old Testament in Klingon or possibly perl to get any meaningful comprehension.

Re:Apply this patch to remove functionality!

[HeX314]

Shouldn't Microsoft have to pay the company for which it infringed the patent rather than forcibly removing code from the product? After all, you paid Microsoft for that feature, right? Is it lawful for them to remove functionality from a product you rightfully purchased/licensed?

Rather than a slap on the hand and punishing the end-user, shouldn't the party that commits the crime be the one(s) punished?

How is this fair? What did the company that owns the patent get out of this? A bill for services rendered from their law firm?

Re:Apply this patch to remove functionality!

[killjoe]

Only 8.9 million? Why would they license it if they can get it so cheap after the fact?

Re:Apply this patch to remove functionality!

[bit01]

Maybe they tried and the patent holder was not reasonable, but I imagine had they thrown the guy a few more bucks (perhaps a nice round US$10 million) they could have just solved the problem and spared their customers a lot of stress and expense.

That would just encourage more members of the patent mafia to try their luck. There are tens of thousands of bogus software patents out there and tens of thousands of parasitic lawyers who want to make money off them.

Every new law, patent and copyrighted item is another opportunity for a lawyer to make money at the expense of the wider community. Real life nomic.

---

The name "Copy Right" is incorrect. It's really "Copy Control Privilege". "Patent" is incorrect. It's really "Idea Control Privilege".

Re:Apply this patch to remove functionality!

[ivan256]

Im sure the patent holder would allow Microsoft to continue using the patented software for a price.

Why are you so sure? There are plenty of companies that buy or file patents speciffically to keep a technology off the market and prevent it from competing with their existing product.

Re:Apply this patch to remove functionality!

[drakaan]

Offtopic, but I don't care...mod me down, already...yes, I looked, no Perl hacker has actually done this yet, so if someone has time to waste, feel free to expand upon this.

#!perl -w

use strict;

our %creations;
our $creator = 'God';

sub beginning() {
create('heaven',$creator);
create('earth',$creator);
}

sub end() {
exit(0);
}

sub create() {
my $what = shift();
my $who = shift();
if ($what =~ 'earth') {
$creations{$what} = '';
}
else {
$creations{$what} = $who;
}
}

beginning();
end();

I don't think so.

[RancidMilk]

Patches are for pirates!

I wonder...

[holySherm]

if the patch will be made available to users who have unregistered versions of Office. Or will it be treated like a content update instead of how they treat security flaw patches.

Whose problem is this?

[lukewarmfusion]

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?

[voice_of_all_reason]

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?

[Bazzalisk]

Actualy you didn't buy a copy of the program - you bought a license to use it.

It may seem like a trivial difference, but legaly it's a huge distinction.

Re:Whose problem is this?

[DiscoFreq]

So users paid to use the software but have to remove functionality (for which they paid) now.

Does this mean Microsoft has to refund some of the purchase price? :)

Re:Whose problem is this?

[rpresser]

You're welcome to try to sue them for damages ... but I'll bet that the EULA releases them from such liability.

Re:Whose problem is this?

[jbolden]

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?

[GigsVT]

Microsoft office as sold and supported by Microsoft does not violate that patent.

Are they going to recall all the copies sitting at retailers and distributers?

I didn't think so.

Re:Whose problem is this?

[GigsVT]

It is important. You did buy a copy. Under copyright law you bought a fixed representation of the copyrighted work, that that gives you certain rights, such as under the first sale doctrine.

This is whether you accept the EULA or not.

Re:Whose problem is this?

[PhilHibbs]

Under copyright law you bought a fixed representation of the copyrighted work, that that gives you certain rights ... whether you accept the EULA or not.

I think I'm right in saying that this hasn't actually been decided in a binding-legal-precedent-kind-of-way yet. Of course, one could have sneaked past me. There's also the "in the US/UK/elsewhere" question.

Re:Whose problem is this?

[johnwbyrd]

You are incorrect. It is your responsibility to make sure that you are not using non-infringing code. 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.

This is a common negotiation point during software licensing, but Microsoft is very historically consistent in the way that it phrases this limitation of warranty.

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

Re:Whose problem is this?

[Chris Mattern]

Legally, it may not be any distinction at all. Book publishers tried this dodge around the beginning of the 20th century to prevent the selling of used books. Courts threw it out so hard it bounced twice. There is not yet good precedent that software should be treated differently; software publishers have been reluctant to put it to the test. As long as it's uncertain, they can scare people with it.

Chris Mattern

Re:Whose problem is this?

[utlemming]

I am of your opinion. It should be Microsoft's responsability to license the patient and make it good. When I bought the license to use their product, I was licensing it in good faith. Frankly, I would love to return the product and get my money back claiming they they have violated their licensing agreement by reducing functionality. In fact, I wonder if Microsoft will allow me to return the product based on the claim that I can no longer use the product legally that I purchased. If Microsoft does not provide a legal way to provide that same functionality, with the same performance, then they are changing the terms of the licensing agreement in an illegal way. I gave them money in return for the rights to use their product. Now because they broke the law, they are saying I can't use that product. So another question I have is that if the patent is stolen, and illegally used, then technically, is the licensing agreement void? IANAL, but my understanding is any agreement reached where one of the terms is illegal makes the entire agreement null and void. So, in my opinion, it should be Microsoft's duty and obligiation to provide the functionality legally. I think I will be calling Microsoft today...

Re:Whose problem is this?

[Qzukk]

What rock have you been sitting under? It doesn't matter who promised you what or sold you which widget, if it infringed on the patent before you owned it, it still infringes on the patent. While the patent holder probably won't bother hunting you down, you'd best keep an eye open for the subpoena of microsoft's product registration database, just in case.

Don't think just because you bought it from somewhere else that you're in the clear (think stolen property. Now think stolen intellectual property). Suing the customers has been tried before back when Ford broke into the automobile scene. It only backfired because it made the other automobile makers unpopular. What does this inventor sell that can be boycotted?

Re:Whose problem is this?

[FST777]

You are using a technique which is patented, but not licensed for use by you. You have a license with Microsoft to use their product, but the technique is technically owned by said developer. Since he did not grant you a patent license, you are in fact obliged to install the said patch. As said before: it's up to said developer to hunt you down and enforce law upon you. That will not happen. When it would happen, you would have a strong chance to get the money you would have to pay back from Microsoft, since you bought their license in good faith. Now you know that you are using software that uses an unlicensed patented technique, the law forces you to do something about it.

Re:Whose problem is this?

[tomhudson]

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.

Re:Whose problem is this?

[karmatic]

For people in the US, that's not necessarily the case.

Re:Whose problem is this?

[OneSmartFellow]

Sorry, I purchased my copy of MS Office in good faith. I am unable to understand how to apply the patch. They must do it for me for me to be compliant.

Re:Whose problem is this?

[Benanov]

Brand new machines are already coming with Office XP SP 2, and as a result are patched. The newbie in my department has a patched machine.

Re:Whose problem is this?

[jbolden]

Microsoft products patch themselves by default. Anyway you can sue Microsoft to apply the patch (I think you would lose) but grandparent was arguing he had the right to use the software as is.

Re:Whose problem is this?

[Anonymous Coward]

You're wrong. Try buying a stolen radio sometime, even if you had no idea it was stolen, you might not go to jail but you don't get to keep it when the cops show up. Now, you've bought some "stolen" IP.

Suing the customers for patent infringement isn't a new thing. Back around 1900 when Ford started selling cheap cars, one of his competitors sued people who bought cars from Ford. Reading around the various links posted by others here, I see that Microsoft's customers have been sued before, though in that case Microsoft defended them and won. In this case, Microsoft's already lost, so I wouldn't count on their defense meaning much.

Re:Whose problem is this?

[tomhudson]

Don't be a moron. (Oh, right - telling THAT to an AC)

Suing the customers for patent infringement isn't a new thing. Back around 1900 when Ford started selling cheap cars, one of his competitors sued people who bought cars from Ford.

Your Ford example sucks. The competitors lost their suit. Ford continued to sell cars.
http://www.prorec.com/prorec/articles.nsf/articles /FE18101F937B9D8386256DBF00739550

n 1903, when Henry Ford launched the Ford Motor Company, his third attempt at making cars, automobiles were high-priced, custom-made playthings for the rich. What's more, the major manufacturers had figured out a way to keep it that way. They had acquired a strategic property right very much like the recording industry's copyrights on recorded songs. It was called the Selden Patent and it gave its owners the exclusive right to sell a very basic invention: self-propelled vehicles powered by internal combustion engines. Many people in the car business thought this patent was an outrage - much as some online retailers today are angry that Amazon.com received a patent on its "One-Click" checkout system. But the U.S. Patent Office had issued the Selden Patent and a group of powerful incumbents had purchased it and formed an association to enforce it. Litigation, then as now, was very expensive - especially for start-up companies with limited working capital. Nearly every car company fell into line to pay royalties to the Association for the privilege of making and selling cars.

Except Henry Ford. The association did not want another competitor in Detroit and it did not like his idea of driving prices down to where average people could afford a car. So it refused to license him. For Ford, it was either exit the industry or fight the Selden Patent in court. He decided to raise a legal war chest and fight the incumbents. The litigation lasted from 1903 until 1911 and along the way, the association launched hundreds of lawsuits against Ford's customers to scare them away from his showrooms for buying "unlicensed vehicles."

Most ordinary people of Ford's era had been content to stand by and watch the automobile makers slug it out over the Selden Patent. It was just an industry cat fight. But when the big "money men" started suing ordinary people who were just trying to buy a cheap car, public sympathy shifted against the incumbents. People rallied to Ford's side against the bullies. Editorials weighed in against the industry's heavy-handed lawsuits, and Ford helped his own case by purchasing litigation insurance for his customers. By the time the patent litigation was over - Ford won on appeal in 1911 when the court ruled that the Selden Patent covered only cars made with a special type of engine nobody was using anymore - Ford was a hero, and the largest car manufacturer in America.

At lest provide a relevant example, or I'll have to sic the sharks with friggin' lasers strapped to their heads on you.

Re:Whose problem is this?

[terrymr]

It never will be probably. When you buy something there exists a contract between you and the seller. There is no contract between you and the manufacturer. The EULA attempts to create a contractual relationship between the manufacturer and the buyer but does so unilaterally without any additional benefit to the buyer which in most jurisdictions is not considered a valid contract.

In addition most EULAs essentially claim that the software doesn't do anything to avoid creating liability for non-performance. Nobody in their right mind would allow enforcement of a contract that specified that total non performance by a party could be considered valid performance under the contract.

Re:Whose problem is this?

[navyjeff]

While the patent holder probably won't bother hunting you down, you'd best keep an eye open for the subpoena of microsoft's product registration database...

And that, my friends, is exactly why I never register my software. I see no reason to tell anyone who makes software where I live, what I do, or how much money I make.

Re:Whose problem is this?

[GigsVT]

I think it will be slowly decided.

Unfortunately if you live in a state that passed the UCITA then all your contract law arguments get a lot weaker. (Maryland and Virginia only last I checked, thankfully)

But in the end you are right, under normal contract law there's no way an EULA could stand up. Just as the court wouldn't uphold a contract that signed away your entire future earnings for a popsicle, they wouldn't uphold such craziness that is in EULAs.

I think it would be a very good gesture for someone with lots of resources to produce a program with an insane EULA that does say something like "You will pay me $10,000 per year for the next 100 years", just to challenge the concept. Try to collect on some of the debts, but don't try too awfully hard, just until you get some people to sue you over it.

Re:Whose problem is this?

[xtieburn]

Well bravo on the moron remark, it truly represents your intellectual superiority.

His example was fine. You went through the trouble of finding and pasting the paragraphs saying that the legal cases were shot down, while not actually realising that that isnt the point.

The legal cases were valid even if they were eventually thrown out and this is whats important. The company was fully capable of suing the customers for _exactly_ the same crime you claimed they couldnt in your long post. Had Ford lost the case every person that was sued would have lost it as well.

Oh look Microsoft _has_ lost the case that means that every person has also lost it as well. They are all required by law to ensure that they are not in breach of that patent.

As the AC who you decided was a moron pointed out. If you buy stolen goods, even if you new nothing about the fact it was stolen. The goods will still be taken away from you.

Meanwhile your main post is deeply flawed.
'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.'

This isnt about any contract youve signed or the EULA, taking the stolen example again. Whether you sign a contract saying you take liability for the theft or not is irrelevant itll still be confiscated. No company, infact no one can just write up a contract that says you will or wont be liable if the product you have is breaking the law, because, well, its breaking the law...

Itd be like complaining about going to jail for killing someone because they hadnt gotten you to sign a contract saying you couldnt, before you commited the crime.

Seeing as your entire post and point is based around this your entire post is also a load of trash. The nice and capitalised part of the EULA isnt a contract for you to argue over, its a warning of the fact that if such a thing happens _you_ are liable according to the law.

Nor is this a case of MS changing the contract after you've got the software. It was always illegal for you to run software that breaks the patent laws. MS dont choose whether the people using illegal software are liable or not.

The fact is if anything that you own becomes illegal then you are responsible for disposing of it or updating it so that it is not illegal anymore. You cant just say you werent informed about it when you bought it, you cant blame it on the company. (Well you can but it wont make your software any less illegal.) You cant sign away the illegal nature of what you're using.
You have to sort it out yourself.

Now if you decide the way to sort it out is to return it to MS, and ask for a full refund because you can no longer use it with the patch in place... Well thats a whole different kettle of fish.

Re:Whose problem is this?

[tomhudson]

What counts is what a JUDGE rules, nothing else.

The "Selden Patent" was bogus, and the courts ruled that way. So, yeah, only a moron would cite a case that disproves their point ...

They didn't "throw out the case" - the judge RULED.

Next, on the patent infringement bit in TFA - I am not liable for what other people do. Again, taking the original poster's example - a store sells me a radio, that later turns out to be stolen. The original owner claims it back, and I claim my money back from the vendor. Same with software - it doesn't matter what they put in an EULA that I never signed and didn't see until after I buy the software - the VENDOR is liable, not me.

Microsoft found this out the hard way in the Timeline case, where they had two choices - cough up to Timeline, or have Timeline sue their customers, and their customers sue Microsoft. And the suit against Microsoft would have been an easy class-action slam dunk. Most jurisdictions have decent consumer protection laws.

The fact is if anything that you own becomes illegal then you are responsible for disposing of it or updating it so that it is not illegal anymore

No - the VENDOR is responsible, as well as for any associated costs. I'd say everyone bill Microsoft for the time spent patching this and testing it. Again, I am not responsible for what 3rd parties do. Like all other hidden defects, the VENDOR is liable for all the associated costs. So, unless they pointed out beforehand the specific infringement, they are liable. And I can claim back any time lost - not that I would - I never used office (Wordperfect was always much better, and a better deal, and I don't use Wincrack.)

So, to summarize:

1. The original poster's examples were moronic - they disproved the points they wre trying to make
2. Vendors are liable for hidden defects and buyers have recourse
3. class action suit - PROFIT?

Re:Whose problem is this?

[xtieburn]

'Microsoft found this out the hard way in the Timeline case, where they had two choices - cough up to Timeline, or have Timeline sue their customers, and their customers sue Microsoft'

Youve just backed up my point. Timeline can sue the MS customers because the MS customers are liable. Whether the customers can sue MS afterwards or not is another case entirely. Fact is they are breaking the law by using the software and that means they can be punished for it.

'No - the VENDOR is responsible, as well as for any associated costs. I'd say everyone bill Microsoft for the time spent patching this and testing it.'

The vendor is responsible for solving the problems it has, and if they want to keep selling the product they have to show that they are dealing with the issue, but that doesnt take away the fact that you are responsible for dealing with your particular piece of now illegal software.

'Like all other hidden defects, the VENDOR is liable for all the associated costs. So, unless they pointed out beforehand the specific infringement, they are liable.'

That isnt removing your liability. Its simply allowing you to place it back in to the vendors hands. The fact that you _have_ to place it in to the vendors hands or sort it out in some other way is proof that you are currently in breach of the law and therefore you are liable for it. If you werent liable, you could continue using the software illegal or not. That clearly isnt the case.

Whether you can use the vendor as a means of sorting out whats wrong is irrelevant if you dont sort it out youll still get the software confiscated and potentially get sued by the original patent holder if you are caught using it.

In other words you are legally obligated to return, patch or dispose of the software. I believe that is the definition of being liable.

Re:Whose problem is this?

[tomhudson]

The Timeline case as to the 3rd-party liability was settled out of court, so until a judge rules, it is the vendor's responsibility, not the purchasers'. This was after Microsoft lost in the direct lawsuit.

Now as regards 3rd-party liablity - where I live I am NOT responsible. A lot of other jurisdictions have the same clauses - the vendor AUTOMATICALLY is liable. That's why most licenses have a severability provision for any clause that infracts local law. Timeline could have TRIED to sue me, for example, but they are prevented by statute from succeeding, so the case would never be heard. They simply lack a standing to sue me.

Re:Whose problem is this?

[johnwbyrd]

Nearly all software is licensed, not sold. All MS software is provided under a fairly specific, limited license, so I think your common-law implications of warranty and merchantability (as applied to typical physical goods) don't apply.

This conversation sucks. I'm going to go back to lurk mode.

Re:Whose problem is this?

[tomhudson]

Nearly all software is licensed, not sold. All MS software is provided under a fairly specific, limited license, so I think your common-law implications of warranty and merchantability (as applied to typical physical goods) don't apply.

Wrong-o. Sale, lease, license, whatever - the vendor is always liable for hidden defects.

Ask your local consumer protection office.

You'd think...

[Pedrito]

that this would help show to them how stupid the idea of software patents are. But I suspect this won't change the MS perspective on software patents.

I've never been to Guatemala, but I suspect the $8.9 million that Amado won will go far...

Re:You'd think...

[Syberghost]

that this would help show to them how stupid the idea of software patents are.

Since the indications are that Microsoft stole this idea, and possibly code, from this guy, I doubt it'll do any such thing. More likely it'll convince them more that they're a good thing.

Re:You'd think...

[flappinbooger]

That's Emporer Amado to you, mister.

Re:You'd think...

[angle_slam]

Depends on how MS uses their patents. Originally (and this may have changed), MS obtained patents defensively, not to use offensively. That is, MS would obtain a patent merely to show they invented something, to prevent others from using software patents against them.

Re:You'd think...

[Frankie70]

But I suspect this won't change the MS perspective on software patents.


What do you think is MS's perspective on software patents?

Re:You'd think...

[JoeF]

Most of it probably went to the lawyers. They are the only ones who get rich.

Who does /. hate more?

[RingDev]

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

-Rick

Re:Who does /. hate more?

[Pensacola Tiger]

Neither one. If you have to 'hate' someone, try the US Congress, who legalized software patents, or the USPO who gives them out like candy to all comers.

Re:Who does /. hate more?

[iCEBaLM]

The US government for granting software patents.

Re:Who does /. hate more?

[tpgp]

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

Hmmmmmmmmmmmmmn,

Tough choice - I'm going to go with live-by-the-sword-die-by-the-sword Microsoft.

Seriously - software patents are wrong, alot of people who wield them do so unethically, but its hard to have sympathy for a company licensing stealth patented tech.

Re:Who does /. hate more?

[0xdeadbeef]

Government isn't the shooter, government is the gun, fool.

Re:Who does /. hate more?

[0xdeadbeef]

Government has no interest beyond justifying its own existence, everything beyond that is the agenda of individuals and specific groups. The boogymen you libertarians are so afraid of are the very people you idolize - the oligarchs who bought and paid for that government. The cards that "industry was dealt" are the cards they wanted all along, from the deck which they stacked.

WHAT functionality?

[linolium]

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/

"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."

Re:WHAT functionality?

[ug333]

Thanks for the article. I'm surprised this wasn't in the original article, considering how relevant it is.

Now, does anyone know exactly what this actually translates into for end users? I want to know what features I will actually lose when my company applies this.

Re:WHAT functionality?

[Col. Klink (retired)]

This story doesn't exactly mention what functionality the patch removes.

The newspaper story doesn't, but the link to the patch does: http://support.microsoft.com/kb/904018

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.

Re:WHAT functionality?

[bill_mcgonigle]

Dude, you've discovered Step 2!

What about OO.org?

[Mick Ohrberg]

Is OpenOffice affected by this?

Re:What about OO.org?

[Anonymous Coward]

Probably not, if the patent is: "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."

Then OOO isn't affected as its program's are completely different.

Re:What about OO.org?

[TheoMurpse]

No. Microsoft was sued over code they included in their product that infringed a patent from 1994. OO.o is not affected, unless OO.o stole code from Microsoft ;)

Re:What about OO.org?

[mrchaotica]

Or unless OO.o implements the same idea in a similar way...

Remember, this is a patent, not a copyright -- it doesn't have to be either identical or derived; it just has to be similar.

Re:What about OO.org?

[Mick Ohrberg]

Or unless OO.o implements the same idea in a similar way...

Exactly my point. Can the same patent holder come after OO.org? I'm not familiar enough with OO.org to know if a similar feature exists in it.

Re:What about OO.org?

[JourneymanMereel]

To the best of my knowledege, OpenOffice.org has no built in function to move data between Excel and Access.

Re:What about OO.org?

[MooUK]

At least, if OO.o does, then almost every single OS and program since a very long time ago has.

Copy and paste, anyone?

Re:What about OO.org?

[gonz]

Probably not, if the patent is: "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."

Then OOO isn't affected as its program's are completely different.

This appears to be the actual patent:

http://tinyurl.com/9onx3 (5,293,615 on March 8, 1994)

It refers to "spreadsheets" and "databases" generically, not just Access and Excel.

-Gonz

Re:What about OO.org?

[Mick Ohrberg]

To the best of my knowledege, OpenOffice.org has no built in function to move data between Excel and Access.

No, but since TFP doesn't refer to Access and Excel, that's irrelevant. It specifies 'spreadsheet' and 'database'.

Apply this patch to maintain licensing!

[mpathetiq]

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.

Sincerely,

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

Re:Apply this patch to maintain licensing!

[skiman1979]

Sounds to me like Microsoft is requiring all NEW deployments of the affected applications to use the new upgraded/patched version, but they are only requesting that you patch your existing installations. Seems patching existing installs is not required by Microsoft.

Re:Apply this patch to maintain licensing!

[Thing 1]

Funny how not one word from Microsoft describes what code is actually infringing.

In other words, what functionality installing this patch is going to remove (if any; but if none, they would have stated that in BOLD CAPS at the top...).

I wish..

[Anonymous Coward]

They would release important patches as fast as this one. But I guess this problem would harm their money.

Re:I wish..

[saleenS281]

SP2 was already done. This is a small patch... and I hate to break it to you, the codebase for access/excel is miniscule compared to windows. Of course this patch came out "faster". Hell, they probably started work on it long ago *just in case*, it's not like this lawsuit was filed and settled in a week.

What does it change?

[jeffy210]

Okay, I RTFA, and nowhere does it state what exactly it is removing or changing. I use Access very hevily with Excel. Popping data back and forth between the two. What is it going to break and what is a workaround?

Re:What does it change?

[jeffy210]

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:What does it change?

[rock217]

From TFA:
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.

Re:What does it change?

[mrchaotica]

Two words: Hell no. That's not a "small" part of the market segment, IMO.

And you'd better hope no member of that market segment needs to upgrade or install a new copy of Office for the next, what, 20 years?

On the bright side, if OO.o isn't also infringing, it provides a great reason to switch!

Re:What does it change?

[wiredlogic]

You would have to be a complete retard to edit database records from a spreadsheet. Especially, considering the limited amount of validation you can enforce with Jet. The linked table mechanism is clumsy and slow anyway. It depends on either a hard coded path or a defined ODBC data source. Both of which are easily broken when documents are shared with others as is frequently the case with spreadsheets. It's no big loss.

Likewise. Anyone trying to link a SQL server table into Excel is doubleplusretarded.

Re:What does it change?

[jeffy210]

Linking a SQL table into Excel (size not withstanding) is actually done fairly often. Excel's Pivot functions are far better than anything Access has to offer. This makes creating drill down and dynamic pivot charts and tables very useful for combing through data. I know quite a few companies that use this set up to help them forcast their numbers.

As for the using Excel as a source, yes I agree it a precarious implementation (I wouldn't recommend it), but again, I see quite a few people who have this set up as well.

Re:What does it change?

[Forbman]

linking external data to Excel is done through MS-Query anyways. It's read-only. But it's easy enough to replicate in VBA with ADO as well, just more painful to do and no GUI query builder.

Re:What does it change?

[lubricated]

>> You would have to be a complete retard to edit database records from a spreadsheet. Especially, considering the limited amount of validation you can enforce with Jet.

I always thought you would have to be a complete retard to trust jet with critical data.

From the FA...

[Parity]

In response to about half of the top level posts, no, this court decision isn't forcing you, the existing MS software users, to change the way you do things; but it prevents any -further- distribution of the infringing technology.

From the article:

"Although existing customers can keep using older versions on current machines, any new installations of Office 2003 will require Service Pack 2, released by Microsoft in September. Office XP will need to be put into use with a special patch applied."

Next Headline

[guru8376]

My first thought, after reading what the submitter posted, was that the next headline would read: "Creator of VisiCalc sued for patent infringement".

Interesting MS spin

[dpille]

"As a result, Microsoft must make available a revised version of these products with the allegedly infringing code replaced."
 
What about a "a verdict last year by a jury" makes the code anything but_actually_ infringing instead of _allegedly_?

Prior art

[jbolden]

It seems to me that Microsoft did a bad job in defending this case. Microsoft claims (and for the purpose of argument lets assume the claim is true) that they had a working exchange between Excel and Access prior to 1990. Further you clearly saw similar types of echanges with other products (Paradox and QuatroPro, Lotus 1-2-3 and db2, etc...).

Obviously they lost I'm curious as to why though. I think this means that something like:

1) The layoffs have gotten to to the point that Microsoft can no longer prove stuff about its own code base.

2) They had committed a more serious violation (anti trust, copyright...) and so couldn't go into details.

3) They didn't take the case seriously.

Does anyone have any insight as to why they lost?

Re:Prior art

[DrPizza]

You must remember that the courts have fuck all notion of what it is to be "obvious" (or not). To a software developer it would be argued that, for example, the Eolas patent was an obvious and natural refinement of existing technologies (using in-process dynamically linked libraries instead of external processes) and thus should have been invalidated by the copious prior art (which covered approximately 99.9% of the same material). If nothing else, you'd think that independent discovery (which is not held to be a protection against charges of patent violation) would demonstrate obviousness.

But not in the eyes of the courts or the patent office.

It would frankly not surprise me if the same were true in this case.

Re:Prior art

[jbolden]

Thank you for the Eolas link. I don't know if you followed the case but:

1) Microsoft lost (500m suit as well)
2) W3 consortium proved prior art
3) Patent office invalidated the patent

So it appears that Microsoft also lost here even though it was later provable that there was prior art.

Re:Prior art

[mavenguy]

I don't have any insight as to why Microsoft lost this in District Court, but they have filed a request for reexamination of the patent at issue. They have cited a ton of prior art. I would guess the current patch request for customers is precautionary (or maybe there's a more borg-like reason?). I have no idea if an appeal has been filed, or, if not, still could be filed.

BTW, kudos go to blincoln's post in the previous slashdot discussion last June who finally got the correct patent number (the inventors name on the patent is listed as amada so a simple search would not bring it up). And a big boo to most of the stories online that couldn't be bothered to get essential facts in a story like this. Why not include such basic information for those who want to follow up for more details?

Re:Prior art

[podperson]

If Microsoft or anyone else wanted to argue that this was "obvious" or that they were "just doing what Paradox did" or whatever, then they would need to content with the following:

1) They claimed that their engineers STARTED working on it in 1989.

2) They released it as a new feature in 1995.

If it's obvious, it shouldn't take "engineers" six years to implement.

Re:Prior art

[jbolden]

Well the Access code base is really really bad (Microsoft has admitted this publically several times explaining why they won't/can't port). But yeah you are right this does appear to be a reasonable counter argument. My guess is that Microsoft lost interest and then restarted but then no more prior art....

Good point on the 1995 release, thank you.

Re:Prior art

[DrPizza]

Unfortunately, that isn't what happened. The patent was upheld, because the software claimed to be prior art was deemed to be different; the differences between the prior art and the patent were negligble or non-existant, and the patent was certainly obvious, but the courts don't care.

Re:Prior art

[AnotherDaveB]

It seems to me that Microsoft did a bad job in defending this case. Microsoft claims (and for the purpose of argument lets assume the claim is true) that they had a working exchange between Excel and Access prior to 1990. Further you clearly saw similar types of echanges with other products (Paradox and QuatroPro, Lotus 1-2-3 and db2, etc...). Obviously they lost I'm curious as to why though. I think this means that something like: 1) The layoffs have gotten to to the point that Microsoft can no longer prove stuff about its own code base. 2) They had committed a more serious violation (anti trust, copyright...) and so couldn't go into details. 3) They didn't take the case seriously. Does anyone have any insight as to why they lost?

How about:

4) They lost because they were lying. They declined the opportunity to buy this gentleman's code because they thought it would be cheaper to just steal it.

Re:Prior art

[jbolden]

Do you know why the courts didn't care? I'm wondering how Microsoft lost this if they could show prior art with neglible differences.

Re:Prior art

[jbolden]

Your (4) was my number (2). So was the plantiff able to prove that their ideas originated directly from his work?

Patching to Remove Functionality

[slashbob22]

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:Patching to Remove Functionality

[Politburo]

as opposed to the other 90% of functions in your Office software which are bloatware and are rarely used.

What functions do you use then? If you're just typing a simple document or SS, yes, you won't use the features. Duh. That's the point. They're features for more advanced documents/ss, be it mail merge, master/subdocuments, pivottables, etc.. those of us who do make more complex documents aren't bitching.

OK let me get this straight...

[Spy der Mann]

Microsoft won't release SP3 but forces us to patch Office? :-/

nitpick

[OglinTatas]

"It was recently decided in a court of law that certain portions of code ... infringe a third-party patent," Microsoft said ... "As a result, Microsoft must make available a revised version of these products with the allegedly [emphasis mine] infringing code replaced."

It is not allegedly infringing, it was found to be infringing in a court of law. You can only claim no wrongdoing if you settled out of court and the settlement stipulated that you could claim that.

Re:nitpick

[DrPizza]

Maybe they intend to appeal and don't want to be seen conceding the point?

Re:nitpick

[nonlnear]

Not so fast with the linguistic sleight of hand. If a judge has ruled that a party is infringing, then they ARE infringing. Infringing is a legal technical term which means precisely that a judge has ruled that something is infringing.

You should distinguish more clearly the difference between legally infringing and morally infringing (there's probably a better way to say it, but I think you know what I'm trying to get at.) If a judge has ruled that you are infringing, then you are infringing - in the legal sense. There is no debating that you are in the class of infringing parties. Period. If you appeal, and get that ruling overturned, then you are no longer infringing (and depending on the nature of the case and the reasons for overturning the verdict, it might be found that you never were to begin with).

Just like if you are convicted of a crime, you are legally guilty - whether you did it or not. That is independent of whether you are morally (or actually) guilty. It's the same word for two very different meanings.

Oh - and yes, the court is the "end-all-be-all determiner of all things" - at least legally. You're right that they can't order everyone to see things the way they do. However, when it comes to making statements about settled cases, there is a lot that a court can do. It's not that hard for a person whom the court has ruled in favor of to get an injunction preventing the other party from making certain statements about the case (at least from making certain statements when acting in their professional capacity - i.e. corporate press releases).

Finally, in the interest of good writing, "allegedly infringing" is not fine. "Allegedly infringing" is a precisely defined legal term. In this case, it was chosen for that very reason - to convey the impression that the claims being made are allegations (and only allegations). This is simply not the case. If you want to use legal jargon, then the best term to use is the most applicable one:"infringing". If you don't want to discuss the legal status, but rather that the ruling might be wrong, then a much better choice would be something like "wrongly found to be infringing".

Now, what was that Microsoft was saying?

[mrchaotica]

Something about how commercial software was superior to Free Software because it indemnified users against patent infringment?

So much for that argument!

Re:Now, what was that Microsoft was saying?

[faloi]

The end users are still indemnified. They're not getting sued. Microsoft never said THEY were indemnified. There's an article here 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?

[mrchaotica]

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, it apparently is.

Re:Now, what was that Microsoft was saying?

[Rolan]

mrchaotica:

Something about how commercial software was superior to Free Software because it indemnified users against patent infringment?

And, if you RTFA, it goes on to say....

(In the license agreement) Microsoft promises to indemnify customers from third-party patent claims...

With additional note on some vagueness in how long the user has to apply the patch to keep this indemification. The license agreement says "immediatey" which is, in legal terms, fairly hard to define, but certainly isn't long.

Re:Now, what was that Microsoft was saying?

[mrchaotica]

But forcing the user to install a patch that reduces functionality is not indemnification!

Indemnification should mean accepting liability for any patent infringment claims leveled against the user for continuing to use the software as-is.

Re:Now, what was that Microsoft was saying?

[foobar_fred]

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.

Indemnification means they're going to lengths to protect their customers as far as legally possible. But if you choose to use their product in an illegal manner, why should you expect to be protected?

Microsoft is paying out $8.9 million to this guy for previous infringement, they're providing a patch, and no one is being sued beyond Microsoft.

Presumably their clients who use the products in the legal-n-licensed are still indemnified. Please have a valid point when you Microsoft-bash or you lose credibility.

Re:Now, what was that Microsoft was saying?

[greginnj]

'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:Now, what was that Microsoft was saying?

[lubricated]

>> How is this not the same as the magical Apache "patch" which would cure all woes? I don't see how OSS would have changed what happened and how it happened.

Exactly the point moron. M$ always says that it has an advantage in this area.

Re:Now, what was that Microsoft was saying?

[ScrewMaster]

Actually, I believe it is guaranteed to do one thing: take up lots of space on your hard disk.

Re:Now, what was that Microsoft was saying?

[wintermute1974]

Actually, no. Your computer might lock up during installation, merely corrupting your registry and leaving temporary files sitting in odd locations.

In fact, if installation goes very poorly, it might even trash some existing system files, thereby freeing storage capacity.

Maybe when MSFT patches Office they can

[WillAffleckUW]

make it so it works on Linux.

I so miss Abort Retry Ignore ....

This is why I think patents are good

[flyingrobots]

It's the only way the little guy can win against those who would use their stuff w/o asking.

Kevin

Re:This is why I think patents are good

[db32]

That is exactly how patents are supposed to protect the inventor. However...it isn't the inventor that is abusing the system, its the patentor. Patenting something and then never making it, waiting for someone else to put the work and money into making it real, and then filing lawsuits. Patenting something that shouldn't be patented. Betamax vs VHS made sense and to me was decided correctly, however, by the way things are going now, it would be a patent lawsuit just for making a device that could play video on a TV screen regardless of it using any similar technolgy to do it.

Re:This is why I think patents are good

[insert cool name]

It's the only way the little guy can win against those who would use their stuff w/o asking.

But what exactly was the "stuff" that is being used? There's a lot of posts implying that Microsoft stole his code. If this was the case we'd be looking at a copyright infrigment case, not patent infringment. Sounds to me like some very effective spinning of the facts has been going on here.

All that Microsoft has done is write some of their own code that achieves the same (very basic) thing - ie copying data between access and Excel. Doing this might have been an abuse of their monopoly if it killed the guy's business, but that in no way justifies the insane concept of sotware patents. We need more laws to control large Corporations and Monopolies, not laws that allow people remove our right to implement ideas.

Do you really believe one person should own the idea of copying data from a spreadsheet to a database?? That's an obvious idea and anyone in the world should be free to implement it.

--

http://www.jarfinder.com/

Re:Doesn't Open Office own the patents?

[WillAffleckUW]

No, but that would be a good thing, IMHO.

The concepts that corporations are people, that corporations need not serve the public good, and that software patents are a good thing are all really bad ideas.

We should ditch them and start over.

Re:Beginning of the end of 'Lord Microsoft'

[whimdot]

Moses created graffiti? Wow. I don't see Palm being part of this process though.

I submitted the story the last time...

[Spy der Mann]

Microsoft found guilty of patent infringement.

Here are the relevant links:

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

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?)

Re:I submitted the story the last time...

[cwolfsheep]

I wondered if someone on here had more information on how this came to pass. Good info!

Re:I submitted the story the last time...

[NullProg]

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?)

I don't think so. Appleworks had this feature via a shared memory segment first back in the mid-80's. Is the Carlos Amado method unique? Maybe, but Appleworks is prior art and therefore not a new idea.

I can't believe a mega-corporation with an army of lawyers didn't bring this up in the trial. Is Microsoft that incompetent or is this a way to pressure the zillions of Office 97 owners into upgrading?

Food for thought, enjoy.

Re:I submitted the story the last time...

[cpt_rhetoric]

Since when did jurors let facts get in the way of making a decision? Even if Microsoft had brought it up, the verdict would of been the same. I'm sure the plaintiff said something like the Big Company is picking on the little guy and Microsoft has all this money, etc.

Re:I submitted the story the last time...

[killjoe]

Wow man you are so much smarter then the army of IP lawyers MS has. I mean they spent years on this case, spent tens of thousands of dollars, paid millions of damages all for nothing. They just could have asked you and you would have slayed the court with your argument. DOH!. I can see you in court now.

"Your honor, I present to you the the feature of appleworks which uses shared memory back in the mid 80's! "

Judge: "Well OK then, I am struck by your insight and research, case dismissed!"

Dude that would rock!

Indemnification?

[jbeaupre]

I thought MS offered indemnification. Guess I was confused. Guess that was just server software. http://www.microsoft.com/windowsserversystem/facts /topics/ipi.mspx

Show me the money?

[DoofusOfDeath]

If I were the guy holding the patent, I would have sought tons of $$$ from Microsoft in court. Why did this just result in an obligation to fix up the infringement?

Re:Show me the money?

[Orne]

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:Show me the money?

[PMuse]

they settled for $9 million and an agreement to cease using the technology

That's the story here: Microsoft infringes patent, but settles for $9 million and distributing a patch. Film at 11 -- of some stuff that matters.

Tell Us Again

[Master of Transhuman]

how open source is at threat for problems with patents.

Microsoft builds up its patent portfolio and it still can't prevent itself from having to make product patches affecting its customers due to its pervssive "theft" of "intellectual property".

Yarrrrr

[Anonymous Coward]

Patches are for pirates!

Aye matey!

Yarrrrrr!!!

I'd be scared

[illuminix]

The only thing scarier than a patch that MS is forced to release is a patch that MS is -grudgingly- forced to relase.

Losing patent disputes is good for Microsoft

[cpu_fusion]

Microsoft has a lot of cash to burn. And what better way to spend that cash than to lose a few software patent disputes? The rewards are clear:

1. FUD in the marketplace concerning patents, giving CIOs worry about using open/free software.
2. A way to fund patent trolls who *may* turn their attention to open/free software (if they perceive money to be made from folks like Sun/OpenOffice.)
3. Precidents set on absurd patents whose licensing costs prohibit free softwar from entering a domain.

I'm not saying this particular example is applicable, but losing a few key patent cases may actually help more than harm Microsoft.

Fractions of millions pays off

[digitaldc]

Microsoft would not say how many customers are affected, but said it is likely only a "small fraction" of Office users.

Well, a small fraction could still end up in the millions of users.

Hooray for the little guy with the million dollar patent. According to GeekNewz.com, Carlos Armando Amado patented it in 1990, and tried to sell it to Microsoft 2 years later. Microsoft looked into it, didn't buy it, but used its technology anyway in Excel 95-2002.
Good thing he waited.

Right

[Makarakalax]

Considering the idea is obvious and fundamental I'd hardly describe it as stealing as much as implementing something obvious and demanded by users world-wide.

Would be nice to know which Patent

[misha_thal]

I found two between 1976 to present, neither of which seem on the face of it to be relevant. Anyone know the actual patent in question?
News reports should include such basic info so that
readers can do some of their own analysis if they so choose.

This is what I found at http://patft.uspto.gov/:

1. 5,701,400 Method and apparatus for applying if-then-else rules to data sets in a relational data base and generating from the results of application of said rules a database of diagnostics linked to said data sets to aid executive analysis of financial data
2. 5,537,590 Apparatus for applying analysis rules to data sets in a relational database to generate a database of diagnostic records linked to the data sets

I do wonder though...

[phorm]

What gives somebody a right to patent a method of using two products that *I* created.

Granted this might be a novel idea, but to patent the methods of interacting between two of a specific product (belonging to somebody else) VS one that was, say, aimed at speedsheet/database apps in general...

I don't agree with MS stealing the idea, but being able to patent it seems equally wrong.

Re:I do wonder though...

[Anonymous Brave Guy]

What gives somebody a right to patent a method of using two products that *I* created.

Patent law does.

The vast majority of patents are based on existing work. There's not necessarily anything wrong with that: the improvement could be worthwhile in it own right. If the improvement is obvious, or unoriginal, then of course it shouldn't get a patent, but it should be denied on those grounds, not just because it happens to build on earlier work.

New familiar business model ($$$)

[LemonFire]

1. Review new software releases various vendors
2. Find obvious improvements
3. Patent said obvious improvements
4. Notify company of said improvements
5. Sue company when they implement any of these improvements
6. PROFIT!

-- My favorite question that I ask fellow programmers in hiring interviews: "Do you speak bachi or the binary language of moisture evaporators?"

Software patents suck

[Intangion]

Software patents ruin inovation

whats next, patenting linked lists? for loops?
you cant write ANYTHING anymore without using someone elses patents how is bring all development to a screeching halt. or tieing up developers in courts for the rest of their existance supposed to help inovation?

i dont even like microsoft but i think everyone sueing them for things they arent even doing wrong is terrible for the whole industry

Re:Patching to Remove Functionality-not just MS

[Nom du Keyboard]

I for one would like to thank Microsoft for removing functionality I use

And a second thanks to TiVo, who is doing the same thing. It seems a lot like Bait & Switch to me.

Re:Angst!

[Fishstick]

No, I think it's the incorrect use of "Allegedly".

I saw that and thought the same thing.

http://dictionary.reference.com/search?q=Allegedly

alleged Pronunciation Key (-ljd, -ljd)
adj.

        Represented as existing or as being as described but not so proved; supposed.

Being that this is civil vs criminal court, there may be a difference (IANAL). Criminal court the prosecution "proves" the allegations. Once the Judge/Jury find that there is sufficient evidence to hand down a verdict, using the word "Allegedly" to describe the actions seems incorrect.

Civil court, don't know if you've "proved" your allegations, or if the "preponderance of evidence" by the Judge to render a decision counts as the same thing.

In any case, saying "allegedly infringing code" implies that there is still some question that the infringement really exists, and seems "weasily" to me also. A court ruled that the code infringes the patent, and has ordered a remedy. Seems like you don't get to say "allegedly" anymore.

Why doesn't MS just license it and make it go away

[HighOrbit]

Ok, I just don't understand, unless it is pure cheapness and greed. Why doesn't MS just pay the man $1 per shipped license. The marginal cost to press the cd and license the software is basically nill. It's not like they don't make a basically 100% profit on each license already. So surely they can cough up $1 out of the $370 that I paid them for my license. But Nooooo, they want to remove the functionality instead of licensing it. Come on MS, just fork over the cash (its basically chump change to you) and let the users keep the functionality.

Re:Beginning of the end of 'Lord Microsoft'

[drxenos]

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

Re:Angst!

[ackthpt]

Being that this is civil vs criminal court, there may be a difference (IANAL). Criminal court the prosecution "proves" the allegations. Once the Judge/Jury find that there is sufficient evidence to hand down a verdict, using the word "Allegedly" to describe the actions seems incorrect.

Oh that is quite clear. This would probably best be a calculated insult directed at Mr. Amado or an indication they intend to further pursue this through appeals.

My point is along similar lines, regardind how the /. populace feel about the finding. Depending upon your sentiments you could lean toward the allegation or definite finding.

patent dispute!!!

[Zaloc]

Microsoft where's my companies rebate since we lose some of the functionality that what we had paid for!!!

Re:Angst!

[Fishstick]

Oh, my head was about to esplode.

On the one hand I blindly hate Microsoft, and cheer for anything that impacts them negatively. On the other I blindly hate software patents, and boo whenever one is upheld or someone takes someone else to court over one.

So, I say "splonge"!

Re:Why doesn't MS just license it and make it go a

[Anonymous Coward]

Microsoft appreciates your insight; however, they've already paid plenty of bean counters and lawyers to determine for them which course of action would be the most profitable. They decided that fighting the lawsuit and then removing the functionality was better for their pocketbook than paying the licensing fee. Your armchair evaluation can be found in the circular file.

exactly why software patents are bad

[Xabraxas]

Maybe now some people will realize how bad software patents are. The majority of computer users don't care when Linux is prohibited from doing something because of patents but hopefully the fact that this will affect more users of proprietary software, people will start to take notice.

Re:Gazuga...

[voice_of_all_reason]

I got the magazine sent to me, but never remember anything like that subscriber's letter. Just a bunch of obscure references every other month and then an announcement later on that the Cleansing had indeed occured. This might've been shortly before the name change or the mag folded, I forget which.

Sounds

[Deliveranc3]

Like Microsoft will get away with having infringed on a patent for the entire lifespan of a SERIES of products....

Wow... way to hold out until it doesn't matter anymore.

There you have it then

[ackthpt]

Oh, my head was about to esplode.

On the one hand I blindly hate Microsoft, and cheer for anything that impacts them negatively. On the other I blindly hate software patents, and boo whenever one is upheld or someone takes someone else to court over one.

So, I say "splonge"!

There you have it: Angst! =8-|

Re:Beginning of the end of 'Lord Microsoft'

[TubeSteak]

The 1010 commandments were in Binary.

No wonder "15" made you crash.

Think of the lusers

[Marxist Hacker 42]

In the C sense of that word. This isn't going to impact Microsoft sales one bit- it's a relatively minor piece of functionality that most professional software engineers would stay the hell away from to begin with (after all, you can mimic it in a more controled fashion using an ODBC or OLEDB connection from VBA anyway). Who it's going to impact is those people who don't really understand the difference between a spreadsheet and a database to begin with- who link to their spreadsheets to gain SQL Query capability over them, or to keep a spreadsheet in sync with a database for reporting purposes. This is going to result in a major headache for anybody who provides helpdesk support for such people. In the organization I contract for, I'd say we're going to generate about 800 requests in the first week to "fix my broken database".

Re:Think of the lusers

[Marxist Hacker 42]

At least I misread the KB article to begin with- people linking to Excel spreadsheets for Select Queries won't be affected- only Insert and Update functionality will be disabled. But that's everybody who sends data to a spreadsheet for calculations....

Stones in glass houses

[Anonymous Coward]

Could some one please send me complete information on how to get the service pack and install it.
It is most important that this is accomplished because big bad Microsoft infringed on some ones patent.
BTW please send the text of the instructions directly to my blackberry ...

so did microsoft really lose?

[nuckin futs]

i don't think so. according to the article, they had to pay the developer 8.9 million dollars in damages. Microsoft has made a lot more than that just on sales of Microsoft Office. So they paid little money for the concept, but they'll still be making money off the idea, even with a different code.

Re:Fast???.

[JoeF]

They are anything but fast.
The court decision was in summer of last year. They needed 1/2 year to release this.

a question:

[ecalkin]

who are the 'authorities' here? suppose that i find a company using the offending products and they did not apply the patch. who do i call? i'm pretty sure that it's not the sheriff... the fbi?

    or do i contact the patent holder and what would his remedy be?

eric

Re:a question:

[ivan256]

who are the 'authorities' here?

That depends on the particular ruling and the particular level of violation.

If somebody had a thousand copies unpatched, sure, call the FBI. For lesser violations, you would sue to get a judge to assign specific monitary damages, which again aren't enforced by the courts, but you would be able to procede with having a lein placed on assets of the entity in violation. Depending on where you lived, that may well be the Sherif, but it could just be the registrar of deeds in the town they do business in.

Re:Beginning of the end of 'Lord Microsoft'

[drxenos]

No sure what you're joke is. Mine was from "History of The Word, Part 1."

Re:Go read securityfocus.com's EULA article.

[tomhudson]

The US is less than 5% of the population of the planet. I am not bound by any EULA, and neither are most people :-) Ain't Canada great :-)

Re:Why doesn't MS just license it and make it go a

[Grand High Wonko]

Probably because they worked out that less than 1/370th of their customers used it making the requested amount extortionate.