Microsoft, XML, Injunctions & Patents

I've just added a blog post to my site with the same title as I use here. But I want to examine a very different aspect of the issue than posted there.

There are several things that intrigue me about the odd near-overlap of Microsoft winning a patent on its XML technology for Word, and days later losing a major case which, on the face of it, involves the same technology.

First things first. I've been an expert witness on patent litigation cases for some 15 years. I love them because they're financially lucrative; I hate them because they reveal so clearly the flaws in our legal system. A good friend of mine, a criminal lawyer, said to me many years ago: "It's not about justice; it's about LAW." By this he meant that cases are decided not on the basis of what ordinary human beings might think is just, but on what the written LAW actually stipulates. Even if a case goes to jury trial, the judge instructs the jury not on the niceties of justice, but on the particular injunctions of the legal doctrines that govern the case.

I've spent hours with patent attorneys arguing the meaning of a single word or phrase. The best of them eventually win me over and allow me to see that at least from a certain perspective that word or phrase might have a meaning different than I ordinarily attach to it, a meaning which, if I testify to it, could swing the case in my client's favor. At that point I do not feel dishonest. I do not feel a liar. I have had an intellectual argument with an extremely bright and well-versed opponent and have become at least open-minded to the argument. When I then testify I can swear to tell "the whole truth and nothing but the truth" because by then I see the truth in a different and far broader dimension.

This to me is the essence of patent litigation. Arguments about words and phrases. When the matter goes just before a judge, she or he has a chance to get some kind of handle on the technical issues that surround the litigation, beyond the verbal phrases. When it goes before a jury, odds are that they will not understand the issues and will often favor the underdog. C'est la vie!

This brings me to the patent-granting system itself, which everyone agrees is hugely flawed. Apart from the many years it takes for a patent application to be processed, I believe the greater challenge is that in this complex technological age it's simply impossible for the U.S. Patent Office to keep on staff sufficiently-qualified experts to be able to correct assess the unique value of each new patent application. That's why I joined Peer to Patent (http://peertopatent.org/), a marvelous experiment endorse by the U.S. Patent Office to bring expert opinions into the patent evaluation process before patents are granted. If you explore the work the organization has achieved to date I think you'll be impressed.

But Peer to Patent was formed long after i4i and Microsoft filed their respective patents, and so had no impact. The quality of these two patents will likely be tested through litigation for many years to come. How wasteful!

My last point concerns the complexity of the issues underlying both the granting of the patents and the outcome of the litigation. I've now read some 50 articles and blogs on this topic and no one presents themselves with authority. I forgive them, because to write authoritatively would involve too many skills and far too much research to justify the measly fees we receive as freelance writers (although you can be certain that both Microsoft and i4i are paying for and receiving some very informed research on these topics). My question is about the complexity of technology involved. When it becomes too complex for even the most intelligent of journalists to cover, does that indicate a flaw in the technology, or a flaw in the process whereby analysts and journalists are compensated? I don't know the answer.