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Whose Prior Art Filing Triggered Eolas Reexam? 136

Posted by timothy from the mysterious-ways dept.
theodp writes "The Eolas patent case history shows another prior art filing was quietly made ten days before the widely-publicized W3C filing and two weeks before Tim Berner-Lee's reexam request. Now Ray Ozzie speculates the earlier filing was one being floated at the time that was jointly signed by a number of other parties who supported W3C member Dave Raggett's prior art, which Microsoft unsuccessfully tried to use in the $521 million Eolas lawsuit. Ozzie also notes that those involved argued for all to stand solidly behind the Raggett prior art and not cite anything else. So who are these other parties, and was it their filing and lobbying that triggered the Eolas reexam?"
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Whose Prior Art Filing Triggered Eolas Reexam? More

Whose Prior Art Filing Triggered Eolas Reexam?

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  • Four Words (Score:1, Funny)

    by flewp ( 458359 )
    Me. It was me.

  • I think... (Score:5, Insightful)

    by Anonytroll ( 751214 ) on Wednesday February 11, 2004 @11:31AM (#8249016) Journal
    I think that those were a few of Microsoft's competitors or "partners" that don't want to appear on the screen for whatever reasons so it does not look like they were helping Microsoft. I suspect it would mean bad pr for those if Microsoft decided to spin that in some direction.

    On the other hand, maybe that was the ever so famous shadow government. Can't have a thread without conspiracy, can we? ;^)

    • Re:I think... (Score:5, Funny)

      by NanoGator ( 522640 ) on Wednesday February 11, 2004 @12:50PM (#8249803) Homepage Journal
      " Can't have a thread without conspiracy, can we? "

      Here on Slashdot? No. I think you agree to something like that when you register.
    • I think the reason is more concrete than "bad PR". Whoever was helping with this case obviously has technology that is similar to the Eolas patent, or they wouldn't be able to comment on prior art. But if things go badly, and Eolas knows who they are, Microsoft won't be the only one getting sued.
      • Very true. I didn't think of that until a bit later. ;^)
        How big are the chances that it is someone who is involved with FLOSS - Linux in particular - and is in fear, uncertainity and doubt whether Eolas would go after Mozilla (which the mysterious person/company distributes) next?

  • Shows the importance of publicity (Score:5, Insightful)

    by FunWithHeadlines ( 644929 ) on Wednesday February 11, 2004 @11:35AM (#8249055) Homepage
    Whoever did it, they were probably influenced by the publicity about the case and calls for prior art. Haven't we seen a number of patent cases discussed on /. where someone asks for prior art examples and people respond with examples? All it took was for the issue to be exposed. If you know about prior art, but you don't hear about a patent violating it, you can't speak up. It's the publicity that helps.

    We all know how poorly the U.S. Patent Office has handled tech patent requests. What can you or I do to help the bad situation? Spread the word. In the Net universe, even the most famous tech god is only an email away.

  • I find the patent (Score:5, Informative)

    by Srividya ( 746733 ) on Wednesday February 11, 2004 @11:37AM (#8249078) Homepage
    This is the Eolas text [uspto.gov]. Who thinks such a thing novel?

  • What this is all about (Score:5, Informative)

    by milgr ( 726027 ) on Wednesday February 11, 2004 @11:38AM (#8249089)
    The poster could have indicated what all these patents were about - instead of referencing them by somewhat obscure names.

    These patents deal with browser plugins - and relate to a lawsuit that Microsoft lost.

  • Serious Question for L's and IANAL's (Score:5, Interesting)

    by SloWave ( 52801 ) on Wednesday February 11, 2004 @11:42AM (#8249143) Journal

    How hard is it to file file art papers with the patent office? Does the patent office charge for these filings? Can anyone do it? Maybe it's time to generate some boilerplate filings and start attacking some of these bogus patents out there.

    • Re:Serious Question for L's and IANAL's (Score:4, Insightful)

      by Anonymous Coward on Wednesday February 11, 2004 @11:51AM (#8249236)
      A patent and lawyer's fees (to make sure the patent covers all necessary bases) is large enough to impede the small inventor, while being small enough to be trivial to a corporation or a patent lawyer building a portfolio for himself.
    • Don't quote me on this, but even without a lawyer involved, you still need to dump at least a grand. Getting a lawyer and you're at 5-8k minimum. Or something like that.
      Someone correct me.

    • Re:Serious Question for L's and IANAL's (Score:5, Informative)

      by Anonymous Coward on Wednesday February 11, 2004 @12:08PM (#8249398)
      Filing papers isn't too hard, but you'll want to be sure you are using the right form: (PTO/SB/42)

      http://www.uspto.gov/web/forms/sb0042.pdf [uspto.gov]

      There are several ways to file prior art depending on the status of the application, but this is likely what you are looking for. This filing, known as a "501", is free. It is unlikely that the PTO will decide to reexamine a patent on their own volition(known as sua sponte). Usually you have to file a request for a reexamination. The fee is about $9,000, plus the cost of counsel.

      If you'd like to do some light reading on this kind of filing, it was created under Title 37 of the Code of Federal Regulations, rule 1.501 (cited as 37 C.F.R. 1.501). You can find a reference in the United States Code at 35 U.S.C. 301 (the law) and in the Manual of Patent Examining Procedure (MPEP), the book the patent examiners use, at MPEP 2202. All of these resources are on the web, but check that you are looking at the latest revision (Feb 2003, 8th edition, first revision). These are all available at the USPTO website.

      This isn't intended to be legal advice, and this doesn't mean that I am accepting you as a client. If you are planning to try and take down a major patent (or do much of anything with the USPTO) you really ought to seek qualified representation. I'm not a lawyer, but I am a member of the patent bar (basically I have a license to file for patents).

      • Re:Serious Question for L's and IANAL's (Score:5, Interesting)

        by Dashing Leech ( 688077 ) on Wednesday February 11, 2004 @12:28PM (#8249588)
        This is something that irks me. I can understand why filing a patent costs a lot of money. But if a bad patent is granted it should be easy to have it revoked, not $9000+. After all, we're essentially doing the job that the reviewer should have done in the first place.

        Wait, maybe that's the plan. It's like software companies intentionally putting bugs in their programs, then charging you even more to fix them and with upgrades. The patent office gets paid to grant a patent, and then gets paid again to revoke it. It's either sloppy workmanship or intentional deceipt.

        If a bad patent is granted, what can the "little" guy do? The options are to have it reviewed or to violate it and risk have it go to court. Either way, it's expensive.

        • In other words, a patent law DOS attack (Score:5, Informative)

          by John Murdoch ( 102085 ) on Wednesday February 11, 2004 @12:54PM (#8249844) Homepage Journal

          Hi!

          I can understand why filing a patent costs a lot of money. But if a bad patent is granted it should be easy to have it revoked, not $9000+. After all, we're essentially doing the job that the reviewer should have done in the first place.

          Or, we're abusing the patent process to jerk around a competitor. Or we're abusing the process to defeat the nefarious schemes of companies we despise [oracle.com]. Or maybe we're senior citizens that have adopted filing patent claims as a hobby....

          Once upon a time patents cost very little--and the actual costs of the USPTO (like lots of parts of the U.S. government) were borne by the average taxpayer. In the 1970s and following the government moved toward "user fees"--charging the recipients of a federal program for its costs. Thus visitors to most national parks pay a fee, cruise ship operators pay a fee for Coast Guard inspections, and children pay an annual fee to participate in 4-H. This is the same thing: the people who do business with the USPTO help fund its operation. And the cost structure deters people (hopefully) from clogging it unnecessarily.

          • Sure, there needs to be some penalty to discourage frivolous submissions. I have no problem with some sort of fees. But when the fees become so large they are prohibitive to legitimate appeals, the process begins to break down, as it already is. Plus there are better ways to discourage these things. For example, refunding the appeal fees if it is successful, or a multi-level review where appeals can be ruled to have merit of be frivolous at an early stage and charged accordingly (like court cases).

            The

        • If it's charged against the person filing the bad patent, then I'm all in favor of charging them double that or more. Make it a penalty (I'd even go for imprisonment) for attempting to file a bad patent.

          Moreover, if you're going to have a patent system, put the onus of proving that the patent is valid on the one filing it, not on the government.
        • This is something that irks me. I can understand why filing a patent costs a lot of money.

          Really? Then would you mind explaining it to the rest of us?

          I for one do NOT understand why it's so freakin' expensive to file a patent. It seems to me that this defeats the very purpose of patents. I mean, if I as a (hypothetical) independent inventor invent something new, but can't afford to file the patent, how is the patent system helping?

          Right now, due to the costs involved, the patent system only helps th

          • Re:Serious Question for L's and IANAL's (Score:4, Informative)

            by Dashing Leech ( 688077 ) on Wednesday February 11, 2004 @02:20PM (#8250963)
            Yes. I didn't say I liked the expense of filing a patent, I can just understand it. The amount of work that should go into reviewing a patent application is quite large. The reviewer has to understand the invention and claims, understand the "obviousness" of work in that field, and perform a detailed review of previous related work to ensure no prior art. If done with a lawyer, those costs are obvious (lawyers almost always make something expensive).

            True, this isn't what happens now apparently because they are swamped (something like a max of 8 hours allowed per patent review). So, in theory, they shouldn't be so expensive because not as much work is put into each one.

      • So, if I get this correctly, "Anonymous Coward" is a member of the patent bar, but is concerned enough that someone would somehow think that an informative posting on slashdot is going to be interpreted as accepting the entire Slashdot readership as clients.

        To me, this is about as silly as "Warning: Do Not Spray In Eyes" on a can of deodorant.

      • There is a way to submit an Invention Disclosure Document to the Patent Office that they will hold for two years. I assume they get checked in the internal prior art search. They cost $10 and I expect that someone in the open source movement should start sending them in for every linux kernel patch. I suspect its the only way low cost way to to keep someone else from getting a patent.

    • Re:Serious Question for L's and IANAL's (Score:1, Interesting)

      by Anonymous Coward
      Of course if there was any justice and it was
      shown that there was prior art that could easily
      have been found and the USPTO was essentially
      asleep on the job, you should get that refunded.
      But it's unlikely to happen.
    • Almost anything written in any language is prior art. Something that is only on file in some remote German city, written in german, is prior art for your US patent.

      Thus, I am pretty sure that you cannot file prior art at the PTO. It would simply be impractical and ultimately pointless as you would still be responsible for anything that wouldn't be filed with them.

    • Re:Serious Question for L's and IANAL's (Score:4, Interesting)

      by SloWave ( 52801 ) on Wednesday February 11, 2004 @01:03PM (#8249923) Journal

      It sounds like it is possible for an ordinary person to contest patents. Of course the patent attys and other's who have a lot to lose will say all sorts of scary reasons why not, but here's a couple thoughts that I have on the subject...

      1. The Scientologists tried to scare off their critics by throwing high dollar lawyers at them. Some of the critics countered very successfully by acting as their own lawyers and filing and handling their own cases. Seems to me that this tactic will work with the patent office since anyone should be able to represent themselves. What can the patent office do to you anyway for trying to use the system?

      2. A while back the FCC had it's whole fee structure thrown out when it was declaired unconstitutional and discrimatory. I think the main reason was that it discriminated in favor of large businesses. Seems to me that the patent office is in the same boat today. Maybe a class action suit against the patent office fee structure is due.

      3. No one really has come out and said if there is a fee for filing a prior art claim against an existing patent. Is there?

    • Re:Serious Question for L's and IANAL's (Score:1, Interesting)

      by Anonymous Coward
      Something that would also help would be a public database of patents that seem to be bogus, complete with cited prior art to back up the claims. As the list of bogus patents grows, so will the public's understanding of the problem. /. AC

  • tkwww perhaps (Score:5, Interesting)

    by boutell ( 5367 ) on Wednesday February 11, 2004 @11:44AM (#8249171) Homepage
    Very early versions of the tkwww browser supported full-scale applets: tk widgets and tcl scripts embedded in HTML. The feature was removed later due to the obvious security concerns, but nobody else had a real security model at the time, either (sigh, it's always the obvious and easy part that somebody patents). Unfortunately I was unable to contact the original author or locate a sufficiently old tarball of tkwww; but perhaps someone else succeeded in doing so. This was definitely available early enough, '93 or early '94.

    • Announcing tkWWW Version 0.5 Alpha (Score:4, Informative)

      by N8F8 ( 4562 ) on Wednesday February 11, 2004 @02:00PM (#8250684)
      http://www.webhistory.org/www.lists/www-talk.1993q 1/0145.html

      Author: Joseph C. Wang (joe@athena.mit.edu)

      tkWWW is a Tk interface to (WWW), which lets you send embedded buttons,
      scrollbars, etc in hypertext written for WWW.

      The Tk browser has the following advantages.

      1. Since the entire user interface is written in an interpreted
      language, it should be very easy to make modifications and extensions
      to the system.

      2. tkWWW can be configured with the "htext" widget which makes it is
      possible to imbed Tk code into hypertext or with the "text" widget
      which makes it possible to display multi-fonts. In the next few
      months, there will be a new revision of tK which will allow imbeded
      tK code with the "text" widget and support for the tkWWW "htext" widget
      will be discontinued.

      A quick Google returns some more info:

      http://www.mit.edu/afs/athena/course/other/cdsde v/ CVS/WWW/TkWWW/

      http://public.planetmirror.com/pub/hpfreeware/Tc l/ tkWWW-0.11/

      http://www.funet.fi/pub/languages/tcl/harbor/ext en sions/

  • Eolas...i hated that elf too (Score:4, Funny)

    by FictionPimp ( 712802 ) on Wednesday February 11, 2004 @11:46AM (#8249191) Homepage
    oh wait...were not talking about LoTR... *smacks self* software not fantasy...

  • Why only the Raggett citation? (Score:5, Interesting)

    by Anonymous Coward on Wednesday February 11, 2004 @11:51AM (#8249239)
    I'm not sure I understand the theory that other prior art would,
    apparently, be too confusing for the patent office to handle. It
    doesn't sound like the typical lawyer thing to do (which is to use
    a shotgun approach). This is weird to me, and I would like to understand.
    • In short word: Patents and the patent system are not designed for service industries like software. software is well protected by copyright, patents cause legal incertainty.

      I don't understand why Microsoft does not support FFII [ffii.org] in Europe to get rid off patent legislation. Patents on software are so harmful. Nobody needs them except the patent attorneys who want to make profit.
      • No not really, by copyrighting software, your protecting the implimentation of a "method" for 90 years, but others are free to impliment the "method" using original source code, this is reverse-engineering. However with a patent on the "method" is protected for 17 years, so even if the method is reverse-engineered, it's still got protection. Personaly I don't understand why the PTO doesn't require that the un-copyrighted source code needed to implement a method isn't required to be filed; a software prototy
        • It's for exactly the reason you state - source code is a single implementation. Process patents protect the whole concept. Thats why shit like the Eolas patent (which contains zero, zip, nada implementation details) pisses people like me off - you're supposed to be able to recreate an invention from the patent, but it's just a list of ideas. These days it's perfectly allowable to patent things that you not only haven't done, but don't have any idea how to do and have no intention of doing (theres assloads
          • I remember seeing on TV a story about the guy that invented the laser, he had drawing of how the thing needed to be built, which was exactly how the HeNe gas lasers were eventaly built, but the PTO refused the patent on the grounds of no prototype, which was techncaly impossible to build at the time. After twenty years of fighting the PTO in court, he eventual won his patent and got a boat load of money, because the patent was effective for the 17 years after being granted, and everybody and his brother was
            • Thats a great story but for every case like that theres 20 where a guy has all the drawings and patterns and whatnot and it's NOT exactly how people end up doing it - but it's close enough that he can hassle people 10 years down the road.

              On top of that, if making a prototype was technically impossible, then, imo the true innovation involved is in overcoming those technical barriers - conceptualizing is important but it's better protected by trade secret and/or copyrights than by patents.

    • The most likely reason for citing just one prior art reference is so that the others can be held in reserve for subsequent court battles.

      I'm not a lawyer blah blah blah, but I'm pretty sure that the courts will give great deferrence to the patent office's determination once they've evaluated the prior art reference. Thus, that reference would be somewhat tainted by having the PTO make a decision on it.

      (For absolutely no valid reason, the courts presume that the PTO does its job. A patent holder only needs

    • Well... they find patent applications confusing enough that they just approve them, so it's a fair assumption that prior art filings would confuse them, too.

  • The value of a patent (Score:5, Insightful)

    by Billy the Mountain ( 225541 ) on Wednesday February 11, 2004 @12:07PM (#8249380) Journal
    From the link:
    It's getting to the point where I'm starting to think it would be better to just outlaw patents. The abuses are getting ridiculous, and the Patent Office is not doing its job.

    Posted by: Jim on February 9, 2004 12:43 PM

    I think it's getting to the point where a U.S. patent is losing its value. When I hear about some IP being patented, it no longer means what it once meant. So, for example, when someone says "We have several patents on this" I yawn--even when the patents are non-software related.

    BTM
    • Just take a look at some of the many patents that Microsoft Corp. have received from the USPTO [uspto.gov] and that are pending at the USPTO [uspto.gov]. Most of them have prior art dating back since the invention of the computer.

      Patents are a total joke. The only reason everyone is not suing everyone over patents is that no reasonably large companies are going to sue each other because of the surity of mutually assured destruction (i.e.: any reasonably large company can use there patents to bankcrupt any other), and no indivi

    • Patents suck because lawsuits require gobs o' cash (Score:5, Interesting)

      by hellfire ( 86129 ) <deviladvNO@SPAMgmail.com> on Wednesday February 11, 2004 @12:55PM (#8249853) Homepage
      Dunno if this is out on the web, but I googled for it and any site with relevant information was slashdotted before I even posted about this!

      The inventor of the Weed Whacker was some lone man somewhere in the US. He patented his device and made a sizeable sum of money from it. Demand was huge, and he just started out.

      Well, legend has it Sears made their own weed whacker without obtaining rights to it and sold that to many eager customers who couldn't obtain the original weed whacker. The original inventor sued. Sears tied the case up in the courts until the inventory eventually had to give up because he ran out of money. His income dried up because sears essentially stole his sales.

      I welcome corrections to this story, but it's when companies with huge amounts of money can kill lawsuits by making someone else spend what little money they have, that you realize that it's the legal process that is killing patents.

  • Comment removed (Score:5, Informative)

    by account_deleted ( 4530225 ) on Wednesday February 11, 2004 @12:11PM (#8249419)
    Comment removed based on user account deletion

  • I know I am late... (Score:2, Funny)

    by Anonymous Coward
    ... but it sounds as if he is patenting html. you click on a link and it executes code on the server which sends information back to the client to interact with. (ie you click on a link and the server sends you another web page to interact with(to click on more links))... looks like the US Patent office web page is patented... :)

  • Could it be ... MicroSoft?!? (Score:3, Interesting)

    by Anonymous Coward on Wednesday February 11, 2004 @12:24PM (#8249557)
    From what I have seen of this case, it's not entirely clear that Microsoft wanted to win in the first place. Their lawyers seemed to have bungled the original case pretty badly, and by being involved in the re-exam, they can once more attempt to control the outcome (notwithstanding the huge monetary award for Eolas, which of course MicroSoft can write-off easily enough, but which more than likely will get reduced on appeal anyway, like usual.)

    Think about it though: what sort of place would Microsoft be in with regards to the anti-trust/browser issue if they could no longer support "open standards" media formats in the browser (not that they couldn't, but they can use this as an excuse not to)? They would end up locking-in websites to support the Microsoft-only formats, and make IE the "browser of record" (If nothing else, the FUD factor would come to bear.)

    Everyone seems to hate MicroSoft enough to overlook their apparent incompetence in the courtroom and in the cubicle. Could they really be gaming the system instead? Already they have led to the most obvious prior art going overlooked by the patent office (with the support of even the w3c!). Just why didn't MicroSoft fire their law firm over this?

    Or, do you think that it would not be in MicroSoft's character to risk barrels of cash and get involved as an anonymous agent to cause havoc in the open standards battle? (Hmmmmm... maybe he has a point....)
  • 6,618,754 -- System for transmission of embedded applications over a network Filed October 23, 1995 Issued September 9, 2003 Info from the USPTO, so you don't need to open a new browser window to get the numbers and dates. You can cross-check anything you may have coded with that first date; if you wrote something in 1994 you win..... A NEW CAR! While you're there, check out this: Patent No. 1,087,186. Socrates Scholfield's "Illustrative Educational Device." What does it do? Hell if I know, but it's
  • You can see from the File Contents History what mess this whole patent path is from the start that it is requested... It had been denied a few times, there was a appeal, but stranger though the whole stuff was lost and was refound... Strange case, even if you don't look who the players are...

  • Reexamination -- Here's the Deal (Score:4, Informative)

    by werdna ( 39029 ) on Wednesday February 11, 2004 @03:44PM (#8251962) Journal
    The Patent Act provides several means by which a patent may be voided after issue. One, litigation to determine validity, is very expensive and very difficult, because of the standards of review that are applied. Another, reexamination, is substantially less expensive and the standard of review applied is substantally less onerous, although there are many reasons that an accused defendant would not use the process.

    Litigation is difficult because the Patent Act provides that an issued patent is presumed to be valid. This means that the Court views all evidence through the "clear and convincing" standard of evidence (the civil law equivalent of "beyond a reasonable doubt"), and under very strict evidentiary rules (where testimonial evidence of prior uses is irrelevant unless corroborated by evidence that existed before the critical date of the patent. Moreover, exceptional (probably undue) deference is given to validity decisions made by the USPTO regarding art actually considered.

    Reexamination can be done two different ways, inter partes (2 party) or ex partes (1 party). Ex partes reexam means that a petition is filed with the USPTO, citing the art and explaining why it raises a "substantial new question of patentability." (SNQP). If the PTO finds SNQP, they issue a reexam order, and the patent is examined in view of the new art forthwith and at expedited speed. No claims are presumed valid, and all art found by the examiner is fair game -- in short, it is treated by the USPTO as it was before the patent had issued. It's a "do-over," if you will, this time armed with SNQP art.

    Upside of ex parte is that you are finished after you submitted the art. The downside is that you are finished after you submit the art -- you can't quibble again as the patentee argues for patentability, introduces new claims and such. You are out of the game from there on in -- it is just like initial prosecution all over again.

    That's what inter partes is for. You get to "play along" with the applicant, sniping at him and arguing why both his arguments and new claims are invalid. You get to make a case, settled by the examiner, for invalidity. If you win, you can kill the patent.

    The downside is that if you don't kill it, a patent that rises from reexamination, phoenix-like, may be weakened with possibly narrower claims, but is much, Much, MUCH stronger, because none of the art evaluated is going to be usable against subsequent claims. If the new claims are not so narrowed as to avoid infringement, you are pretty much left defenseless on validity grounds after the, now very angry, patentee sues your ass for infringement.

    Now there is much more than I have indicated, the foregoing is super-simplified and, for that reason, not correct. if you are interested in submitting a petition for reexamination, by all means speak to an attorney before doing so.

    On the other hand, this is an excellent low-cost way to kill patents in appropriate circumstances.

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