Windows 7

Well, that was fast.

Less than a day after the U.S. Court of Appeals for the Federal Circuit decided to uphold the original verdict in the i4i patent-infringement case, ordering Microsoft to stop selling Word by Jan. 11, Microsoft issued a patch that (at least at first glance) sidesteps the alleged infringement.

It seems as if Microsoft did the logical thing that any software company would do in its position: develop a technological workaround in the event that the law stopped working in its favor. (Back in August, my colleague Jeff Cogswell did an excellent and intensive breakdown of i4i’s custom XML patent and how Microsoft allegedly violated it, an article that can be found here.)

“With respect to Microsoft Word 2007 and Microsoft Office 2007, we have been preparing for this possibility since the District Court issued its injunction in August 2009 and have put the wheels in motion to remove this little-used feature from these products,” read a Dec. 22 statement issued by Kevin Kutz, Microsoft’s director of public affairs. “Therefore, we expect to have copies of Microsoft Word 2007 and Office 2007, with this feature removed, available for U.S. sale and distribution by the injunction date.”

That last sentence suggests that Microsoft will have “fixed” copies in stores by Jan. 11. The patch in question is available on Microsoft’s OEM Partner Center Website.

“Microsoft has released a supplement for Office 2007 (October 2009). The following patch is required for the United States. The patch will work with all Office 2007 languages,” reads the explanation on the OEM Partner Center site. “After this patch is installed, Word will no longer read the custom XML elements contained within DOCX, DOCM or XML files.”

The patch is 12.9MB in size; after its installation, any custom XML elements will be removed from documents with those file types. The text on the OEM site continued, “The ability to handle custom XML markup is typically used in association with automated server based processing of Word documents. Custom XML is not typically used by most end users of Word.”

On Aug. 4, Microsoft was issued Patent 7571169 by the U.S. Patent and Trademark Office, describing a “word-processing document stored in a single XML file that may be manipulated by applications that understand XML.” At the time, I surmised that such technology could conceivably allow Microsoft to sidestep i4i’s complaint; but at least from Microsoft’s statement on its OEM Partner Center Website, it seems as if the company chose to eliminate all custom XML functionality entirely, at least from documents with the DOCX, DOCM and XML file formats. I’m betting that Microsoft will issue another patch down the road that restores custom XML without violating i4i’s patent.

Kutz also announced Microsoft’s intention to keep fighting the case. In addition to yanking Word from store shelves, the verdict ordered Microsoft to pay $290 million in fines. That may be pocket change to Bill Gates or Steve Ballmer, but for a company fighting desperately to reverse a declining revenue trend throughout 2009, that sort of money could make a sizable dent in the quarterly balance sheet.

“While we are moving quickly to address the injunction issue,” Kutz said, “we are also considering our legal options, which could include a request for a rehearing by the Federal Circuit Court of Appeals en banc or a request for a writ of certiorari from the U.S. Supreme Court.”

If Microsoft’s patch indeed satisfies the court, then i4i will find itself in a considerably weaker position than before. My bet is that Microsoft will use its considerable legal funds to wear the company down, and then settle out of court for an amount considerably less than $290 million. At that time, both companies will issue bland, vaguely conciliatory statements. And that will be that.