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[XML-DEV Mailing List Archive Home] [By Thread] [By Date] [Recent Entries] [Reply To This Message] RE: Microsoft files for XML patents, says C|Net
 I will avoid the unbearable temptation to mumble about how wrong this specific patent is... I'm sure other will do for me. Rather, I think it is time that we look a bit deeper into what is going on here and recognize a serious problem that must be addressed soon. There has been a rash of patents applied for and granted recently whose only differentiation from the prior art is that the call for encoding data using HTML, XHTML or XML. In many cases, the "process" being patented is exactly like others that have been long in use, the only difference is the encoding format. The Microsoft patent[2] that Tim Bray pointed to in his note falls largely in this class. If you substitute "ASN.1" for the occurrences of XML and/or XSD in this patent, you'll see that prior art extends back to 1982 or so -- especially since, "ASN.1 is an XML schema language." [1] Thus, using ASN.1, rather than XSD, I could produce a system which is effectively identical to that in the Microsoft patent application by simply translating the XSD into ASN.1. Would this mean that I could get a patent on such a system? Or, if I translated the schema to RelaxNG or Schematron that I could get additional patents? Based on current patent office practice, it seems like the answer is "Yes." However, this is clearly wrong. It is well established, in patent law, that you can't get a patent by merely substituting one material for another unless the substitution results in some substantive benefit. Thus, if something is patented as being constructed from wood, you can't get a patent on a plastic version unless using plastic is a truly useful innovation. But, we're seeing hundreds of patents and applications that are based on mere substitutions that don't offer any innovation. XML, ASN.1, RelaxNg, Schematron, are all members of a class of languages that accomplish a distinct function. They are schema languages that define encodings rather than structures. While there are many schema languages, these particular systems are focused on the problem of defining "generic" or "flexible" data encodings for interchange. As such, the substitution of XML for ASN.1 or RelaxNG should be considered much like a substitution of wood for plastic. In this particular case, the Microsoft patent is simply saying that it is a word-processing system that stores its data in a format which is defined by an external schema. The fact that XML is used is irrelevant. The "innovation" in this area didn't come from Microsoft in the 90's, rather, it came perhaps from Goldfarb with his early DTD driven SGML systems in the 70's and 80's, or perhaps Bob Travis and/or Rich Kalin at Digital in the early 80's when they decided to define a word processing format using ASN.1. (My apologies if I left someone out of this list of potential innovators...) At the same time that patent offices are falsely rewarding non-innovation via substitution, they are denying the real innovation of others. I've already mentioned those that dealt with the specific area of document and/or word processing formats. But, we must also look to those that "invented" XML itself. I believe that these people intended and foresaw that XML would be useful for solving a broad class of innumerable application problems. The mere fact that they didn't produce an exhaustive list of all possible applications isn't relevant. What they did was solve, in a specific way, the generic problem of producing a format suitable for use in a schema driven application. The mere identification of one particular use this format in an application domain that has a long history of schema-driven implementations does not rise over the bar needed to justify a patent. (Note: There have been other similar patents in other areas. For instance, I recently helped fight a patent that claimed the idea of storing hyperlinks on CD-ROMS. This ancient, submarine patent claimed that at the time when applied for, the idea was innovative. Yet, the inventors of optical storage devices back in the 60's (principles of Precision Instruments -- my first employer) would have claimed that they created a system which was suitable for *ALL* storage applications for which erasable media had been traditionally used but where erasure was not necessary. Thus, the mere identification of such a use is not innovative. The innovation happened over 30 years ago -- not when the specific form of optical storage, the CD-ROM, became popular in the late 80's or early 90's.) My personal feeling is that words like XML, HTML, XHTML, RelaxNG, etc. should simply never appear in the claims of a patent. Anytime they do, I think we have an almost primae faciea case for saying that the patent is bogus. To be innovative, one should prove some new and novel benefit of using "generic data encoding" or "schema driven something or other", not merely the application of known techniques to general problems. There are many who flame against the patent system in general. However, I think that here we have a specific kind of abuse of the system that should be worth taking action to prevent or end. What I'm not sure of is what the process should be for getting the patent lawyers and examiners to read the laws that are supposed to drive their business. Could Lessig help here? If this kind of substitution continues, we'll continue to buried and constrained by patents that offer little innovation while blocking us all from using techniques, methods, patterns and processes that have become commonplace. This is not a general flame, this is a specific "threat" to XML and the web. bob wyman [1] At DEC, we defined our word processing format in ASN.1 back in the early 80's. [2] Note: The fact that Microsoft has filed this patent application is irrelevant to the issue. There are many others who are filing these things. One of my favorite in this category was a Worldcom patent application for the "innovation" of storing log files for a SIP session using XML. i.e. using generic encoding to store logs for a computer process... The only "value" in the patent was the identification of specific form of encoding, XML, and a specific application for which the logs would be produced (SIP). However, it defined a process which was so profoundly obvious that merely reading the document was almost painful. 
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