Retailers still selling Word with custom XML

Microsoft says that's allowed; i4i could counter with contempt claim

Microsoft today said that retailers can continue to sell unmodified versions of Word 2007, even though a court order that required the company to remove custom XML technology from the software took effect Monday.

"Retailers who had already purchased their inventory from Microsoft are permitted to continue selling those copies," said Microsoft spokesman Kevin Kutz today in an e-mail reply to questions after Computerworld noticed online sellers such as Amazon.com selling boxed copies Office 2007 this week.

Microsoft was barred from selling Word 2003 and Word 2007 after a Texas federal jury last May said it illegally used custom XML technology owned by Canadian developer i4i. The judge who oversaw the patent infringement lawsuit awarded i4i nearly $300 million in damages and court costs, and in August slapped an injunction on Microsoft.

According to that injunction, which was affirmed by an appeals court last month, Microsoft is barred from "selling, offering to sell and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX, or .DOCM file ('an XML file') containing custom XML."

For its part, Microsoft moved before Monday to comply with the court order by pulling all versions of Office 2007 for Windows and Office 2008 for Mac from its own online store. Since then, Microsoft has restored to the store download copies of many of its Office editions. But it has not yet begun selling boxed copies, which are to be replaced with ones that have had the offending technology removed.

"The packaged version of this product is temporarily out of stock causing a shipping delay," the Microsoft store states on the page for Office Home and Student 2007. "Alternatively, this product is currently available for download."

Loudon Owen, the chairman of i4i, declined to claim that the continued sales of unchanged copies of Word are a violation of the injunction, but he clearly was concerned. "In terms of the actual compliance, we're doing our analysis right now," he said. "We're looking at what Microsoft is doing, not only with the product, but the full scope of the injunction."

The injunction also prevents Microsoft from using the custom XML technology internally, marketing Word as capable of opening documents with custom XML, or providing support to anyone who bought the software after Jan. 10.

"The injunction is pretty clear," said Owen. "It prevents Microsoft from 'selling, offering to sell, and importing Word into the U.S.," he continued. "That's pretty broad, but we're not in a position to judge compliance based on press releases from Microsoft."

i4i would have several options if it did decide that Microsoft wasn't complying with the injunction, Owen said, ticking off a legal move that would ask the court to place Microsoft in contempt, and one that was more direct. "It's not unthinkable that we would speak with Microsoft," he said. "But we just don't know. This is the first time that we have sued anybody like this."

Microsoft is not planning on updating unmodified copies purchased after Jan. 10, perhaps by identifying these instances of Word 2007 when users activate the suite. "There is no plan to push out an automatic update for those copies," Kutz said.

Gray Knowlton, who leads the product management team for Office developers, said the same thing in a post to his personal blog Monday. "The patch will not be made available from Microsoft Update or Office Update, and will not be 'pushed' to any user's machine by Microsoft services," said Knowlton.

He was referring to an update that Microsoft posted to its download site last week that removes i4i's technology from Word 2007. Last Sunday, Microsoft published a similar update for Word 2003, which was also named in the injunction, because customers can "downgrade" their licenses for Word 2007 to the older edition if they wish.

According to Microsoft, it is updating Word 2003, Word 2007, Office 2003 Professional, all editions of Office 2007, all editions of Office 2008 for Mac and Word 2008 for Mac. Contrary to what Computerworldearlier reported , Microsoft will not update Office 2004 for Mac or Word 2004 for Mac. "Office for Mac products were not accused of infringement," said a Microsoft spokesman today, "[but] we are changing the product to allay any potential concerns about compliance with the injunction."

Microsoft has asked the Court of Appeals for the Federal Circuit to grant a rehearing before the three-judge panel, or to consider an en banc hearing before all the judges of the court.

"That was predictable," said i4i's Owen. "It didn't surprise us at all. And we'll do whatever we have to do to continue this."

Owen said he expected that Microsoft would petition the Supreme Court if the company is denied a rehearing or en banc hearing by the appeals court.

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld . Follow Gregg on Twitter at @gkeizer , send e-mail to gkeizer@ix.netcom.com or subscribe to Gregg's RSS feed .

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