Microsoft has been granted a controversial patent over the use of XML in word processing documents by the New Zealand Patent office.

However, the chair of the Open Source Society, Peter Harrison, has said he will be lodging an appeal as soon as possible. An Auckland man, Michael Seadon, also says he has prior art that may prove the use of XML in word processing documents has been going on long before Microsoft asked for its patent to be granted.

"On the very day the W3C ratified XML 1.0, I sent well over 10,000 word-processor documents to a UK pharmaceutical company using XML," Seadon said. He will also be lodging an appeal against the patent.

However, Harrison is not so sure Seadon’s find qualifies as prior art in this case. "The patent is quite specifically about Microsoft’s XML schema for word processing and unfortunately it’s not likely that [Seadon’s] documents meet that criterion."

Harrison says however that Microsoft’s attempt to patent an XML schema flies in the face of the reason XML was created. "XML was designed to increase interoperability between systems and Microsoft’s attempt to patent one process undermines the reason XML was introduced in the first place."

Harrison says the society will be challenging the patent on two points. Firstly, the specificity of the schema itself: "A patent must be specific enough to implement and Microsoft hasn’t given that level of detail in its application." Harrison says the application lists the elements Microsoft uses but doesn’t say what they actually do.

"If you look at HTML for example the tag "p" means it’s a paragraph. A "b" tag means it’s in bold. A valid user of XML should be able to take the document and use it but under the patent they can't. There’s not enough detail."

Harrison also says the patent is supposed to be "inventive" and that he would argue Microsoft’s patent fails on that score as well.

Microsoft Office 2003 uses XML in its file formats and the company has applied for XML-related patents in New Zealand and abroad. The company says it is patenting only its specific implementations of XML and intends to licence them on a royalty-free basis.

Any appeals against the patent, number 525484, will need to be made later this month to be considered by IPONZ. A similar Microsoft patent, number 536149, is currently under examination by IPONZ.