I never thought this would happen, but I'm starting to feel a bit sorry for Microsoft. The Redmond, Washington based company, which you may have heard of, has been in court umpteen times in an ongoing battle with a small Canadian software developer called Infrastructures for Information (i4i).
Poor old Microsoft keeps losing to i4i, over and over again. It's undignified and, actually, old news, in a way; however, there's a new development that is worth blogging about. This new development may give Microsoft an important win. The win, if it comes, will arrive with its last-minute application, filed on August 27, 2010, for a writ of certiorari, which is a review by a higher court of the entire record that was seen by a lower court, including the basis upon which the lower court made its decision. In effect, the higher court (in this case none other than the United States Supreme Court – which you may have heard of) can strike down the very basis upon which i4i has sustained its claim against Microsoft.
Now, there's no guarantee that the Supremes (the court, not the singers) will grant the review. However, even if it declines the review, that does not imply that it agrees or disagrees with the lower court. It just means that it has decided not to look at the lower court record. It's the legal equivalent of saying, "You boys take your fight outside and don't bother me."
Okay, I understand that your eyes are starting to glaze over, but stick with me. It gets interesting.History up to August 27, 2010
The real battles in the litigation between i4i and Microsoft extend well beyond the parties to it. It highlights the ongoing battle between those who think that software should not be patented and those who are comfortable with the patenting of software. Those who are in favour of software patents say that they promote inventiveness, put ideas into the public domain, accelerate development and give hard-working developers a reasonable chance to make some money on their ideas. Those who are against software patents say that it's often hard to know when your software patent is being infringed and too expensive to either sue or defend a lawsuit over a software patent. (Ask i4i if it's expensive – you bet it is.) The detractors of software patents also say that it's costly to patent anything, that software is best protected through copyright law and that patenting software takes away money that is best paid to developers instead of lawyers. Lawyers, who have often been found to support the concept of legal fees, may disagree.
Technology bloggers who are opposed to the patenting of software often accuse i4i of being a "patent troll" – a company that sues to enforce its patent in opportunistic way with no intention to market the patented invention. Indeed, Microsoft made that allegation itself against i4i, despite the fact that Microsoft knew i4i sold actual products using the patented technology as Microsoft's business partner. Real patent trolls are generally regarded as being extortionists and undesirable, and that's probably right.
Then there are those who enjoy schadenfreude (it's great with a cheeky chardonnay and some fava beans, I hear) and love the fact that Microsoft is taking a beating at the hands of a little guy. Personally, I doubt that the little guy likes the fight at all. Little guys usually don't, even if they eventually win.
I doubt Microsoft will give up without taking the matter right to the very end. It appears that its policy is to fight everything it can. If you think about it, that's a policy that makes some economic sense: it's the biggest guy on the block, and so young gunslingers are likely to come after it. If it maintains a policy of fighting everything, whether it's in the right or in the wrong, then gunslingers will think twice about taking it on in a battle.
While I see the brutal efficacy of that policy (I'm from Hamilton, Ontario, where we had to fight our way to and from school every day), I lean the other way. I don't think that any business does itself any long-term harm by saying, "We goofed. Sorry. Here's some reasonable money to make up for it. We're big and sometimes we step on people by mistake, but we'll try not to do this again, guys."
It will be interesting to see where this case eventually goes – either way, it's winner take all.