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'Eolas' Browser Plug-in Patent Case Rises Again

Posted by Zonk on Fri Jun 01, 2007 01:21 PM
from the return-of-the-living-patent-case dept.
Patents Internet Explorer Microsoft The Internet
eldavojohn writes "A legal battle that has been around since 1999 and seemingly ended in 2005 now rears its head again. In a confusing move, the USPTO 'reissued a Microsoft patent last week covering the same concepts outlined in the Eolas patent and with wording mirroring that of the Eolas patent. With both companies holding identical patents, the USPTO will now play King Solomon and decide which parent gets custody of the baby.' Both the Microsoft & Eolas patents are available online."
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Related Stories

[+] Technology: Microsoft Bows to Eolas, Revamps IE 237 comments
Tenacious Dee writes "The patent quarrel between Microsoft and Eolas takes a strange turn with an announcement from Redmond that the Internet Explorer browser will be modified to change the way ActiveX controls are handled. A Microsoft white paper details the behavior change."
[+] Eolas vs. Microsoft Lawsuit Settled and Sealed 45 comments
theodp writes "The Seattle P-I's Todd Bishop reports that Microsoft has settled its 8-year-old web browser plug-in patent dispute with Eolas. The spat begat the click-to-activate Web after Microsoft was slapped with a $500+ million patent infringement judgement. Neither Eolas nor Microsoft will be disclosing terms of the deal, although Eolas told investors to expect a dividend (PDF). Microsoft didn't say whether or how the settlement would affect its approach to the underlying technology in IE or other programs. Just last month, the USPTO issued a non-final rejection of the patent's claims, citing the work of Pei-Yuan Wei as prior art."
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  • Any chance in hell they'll both get revoked... (Score:5, Interesting)

    by bbernard (930130) on Friday June 01 2007, @01:24PM (#19355115)
    ...for being "obvious?"

    • Re: (Score:3, Insightful)

      by geekoid (135745)
      No, because they don't fall under what the USPTO considers obvious.

      Thinking you could of come up with the same thing does not make it obvious.

      • Re: (Score:3, Insightful)

        by Waffle Iron (339739)
        Likewise, the USPTO considering it nonobvious does not make it nonobvious.

        And software "plugins" have been obvious for decades. No matter what context they're used in.

        • Re:Any chance in hell they'll both get revoked... (Score:4, Informative)

          by Frosty Piss (770223) on Friday June 01 2007, @03:02PM (#19356743)

          And software "plugins" have been obvious for decades. No matter what context they're used in.

          There is a lot more to it than just the concepts of a software plug-in. There is even more to it than the very general description that gets bandied around here at Slashdot.

          It's pretty standard here to take the title or first paragraph or so of the patent description and jump to the assumption that this is all they have. But this is almost always wrong.

          • Re: (Score:3, Interesting)

            by Anonymous Coward

            It's pretty standard here to take the title or first paragraph or so of the patent description and jump to the assumption that this is all they have. But this is almost always wrong.

            Agreed. The best way to skim a patent is to go straight for the claims, as they are the most important for interpreting the scope of the legal scope of the patent, claim 1 usually being the broadest and most important. Here's claim 1 from the Microsoft patent:

            We claim:

            1. A method of invoking system commands from a mark-up language electronic book document associated with a computer running an operating system and having predefined system commands, the method comprising the steps of: (a) receiving an indi

          • It's pretty standard here to take the title or first paragraph or so of the patent description and jump to the assumption that this is all they have. But this is almost always wrong.

            That also doesn't mean that software patents are *right*.

            More so than a lot of other professions, programmers entire job is to sit and think of ways of doing things. I think the standard for "non-obvious" should be much, much stricter for such a cerebral and abstract pursuit.

          • Re: (Score:3, Insightful)

            by Waffle Iron (339739)
            Look at the single claim in the Eolas patent. That huge run-on sentence is nothing but a badly-worded description of the totally obvious way to solve the the following problem: "Expose a browser's plugin functionality to a scripting language.". Anybody, even less than ordinarilly skilled in the art of CS, would have come up with essentially the same series of steps.

            Just because the people who Eolas bought the patent from were the first to pose the problem, that still doesn't make the solution any less obvi

            • Re: (Score:3, Insightful)

              by dkf (304284)

              Just because the people who Eolas bought the patent from were the first to pose the problem, that still doesn't make the solution any less obvious.

              Funnily enough, the actual inventor is also the CEO of Eolas (which was a spin-off technology transfer firm from the university where he worked as I understand it, a common enough occurrence). While I don't care for software patents for the most part and think that they were enforced in a way that sucked (thanks to odd guidance from SCOTUS) under the standards of

              • Re: (Score:3, Insightful)

                by bit01 (644603)

                the whole plugin thing was definitely novel at the time when Eolas was busy inventing

                Nonsense. The idea of adding software to other software at runtime, as needed, to increase functionality is basic. Very basic, and was being done very early on.

                Naive people who think that giving a software blob a new name somehow mystically gives it new functionality are a large part of the patent mess and you're contributing to that mess by calling this name change an "invention".

                Until the PTO can actually cope int

            • Re: (Score:3, Insightful)

              by billsoxs (637329)

              That huge run-on sentence is nothing but a badly-worded description of the totally obvious way to solve the the following problem:

              I won't disagree with what you say about the quality of the patent - but the run-on and poorly worded bit is standard. I had a Lawyer explain it to me at one time - the upshot being that you need single sentences in the claims. The wording is also VERY precise (but not normal English!) Sorry - I do not remember the exact reason for the run-on bit but it made sense at the tim

    • Re: (Score:2, Insightful)

      by Anonymous Coward
      In the world of One-Click innovation, nothing is obvious. In the world of software patents, everything deserves a government-granted monopoly.

      There are only two requirements for a software patent: the money to pay your lawyers and the conceit to bury your conscience.
    • having an onLoad='someFunction();' element in the body tag however does make this all rather obvious from what I can understand. Given that that feature predates either patent, I think prior art is supposed to cover this whole mess.
    • Nothing is obvious to a business manager paying lawyers. To you its obvious, but they think its shiny and cool and will take it. They want a price on everything, because they are in the business of buying and selling. Free ideas to them is their worst nightmare.
    • TFA says the patent was granted in 2001 and covers the use of "any 'embedded program object' that runs inside a browser." I thought we had Java Applets and Javascript doing that well before then.
    • I gather that not many things are refused for being "obvious" these days. Personally, I think the standard of proving something "obvious" should be very different:
      • If the same method is used in other fields and industries, it's "obvious". (you can't patent 'a menu system on an MP3 player' or 'using live-motion video in a computer game')
      • If, upon demonstration of the results of your "invention", other people would be able to duplicate it, then it's "obvious".
      • If another person in your field, faced with the

    • Re: (Score:3, Insightful)

      by suv4x4 (956391)
      Any chance in hell they'll both get revoked... for being "obvious?"

      let's hope. But if only one will be revoked, I hope it's Eolas. Microsoft may be terribly competitive, and using their advantages to hurt competition, but they're not poor (like Eolas) and aren't stupid (like Eolas).

      They won't sue anyone over this patent.

      If anything, this confirms again Microsoft, and any other big company, is more or less forced to patent bullshit so they have a chance to fight back in such frivolous suits.

  • I vote we cut them in half! (Score:3, Insightful)

    by Binestar (28861) on Friday June 01 2007, @01:26PM (#19355143) Homepage
    Worked for King Solomon! Just split Microsoft in half, Applications apart from OS and we're all set!
    • Ahhh, but he didn't actually split anything. The imposter didn't care, but the real mother did and said, "No, I'd rather you give the child to the other woman," and that's how Solomon knew who the real mother was. Yes, I'm being pedantic. No, I'm not a Christian. I just read the Bible for its literary value.
      • Yes, I know how the story turns out, but if I were to go into the whole spiel about it, then try to fit it into a joke format, I would end up with an onion article instead of a potentially witty one liner!

      • And it is because... (Score:4, Interesting)

        by jd (1658) <imipak.yahoo@com> on Friday June 01 2007, @02:05PM (#19355811) Homepage Journal
        ...King Solomon reckoned that one who was genuine would be compassionate that his technique worked. (This is independent of whether the event actually happened.) A derivative of this can be found in the puzzle of walking up to two people, one who will always lie and one who will always tell the truth. You need to know the answer to a yes/no question, but can only ask one person one question. What do you ask that will guarantee the right answer? (In the biblical case, substitute imposter for person who lies, and one who tells the truth for the real mother.)

        Obviously, Solomon's situation - and solution - differed somewhat from the classical problem and answer in the details, but underlying it is the same basic idea, which is to force the liar to stay consistent and the honest person to change.

        The USPO (and all other patent offices) rely on a high level of honesty, as they stand, but what if a variant of King Solomon's approach could be used, when rival claims exist? Have a way of putting the claims on the spot such that the real claimant will concede something before any false claimants would? Mind you, that might not work - current culture is designed to put self above all else, then both would rather rip the intellectual baby in half. It would only work with ideas developed by people who primarily care that the customers get the products. For example, I could easily see a humanitarian who develops a cure for some deadly disease preferring that the product be developed by someone else than not at all. That's not going to happen very often, though.

        Nonetheless, I believe that such methods are inevitable, eventually. The system as it stands doesn't scale and frequently doesn't work well - if at all. Somebody will have to develop filtering techniques that allow false and fraudulent claims to be detected much more easily - and preferably by anyone who wants to apply those techniques. The patent pending scheme is supposedly so that problems can be found - well, that's all fine and good, if there's any way to find said problems. If a programmatic test can be found to do at least some of the filtering, then all the USPO needs is to distribute the appropriate BOINC clinet. Eventually, this must happen, as there's simply more work than can humanly be done in the time alloted and the system, the inventors and the innovators are suffering as a result.

        • I hated that Solomon story so much. Consider the fake mother. Is it really likely that she would fight so hard to have a baby, to the point where the case gets dragged before the King, with such desperation for a baby to have and to love, that she'd be willing for the baby to die?

          And when was the last time you heard of a woman allowing a baby to die, even if it's not hers? Just that alone is just so very unlikely.

          • That's one reason it should not be taken as a literal event, but as a philosophical discourse on the association between honesty and compassion. (Another reason is that there is a statement that the events during the time of Solomon are documented elsewhere, but the book named no longer exists.)

            Now, having said that, there have been many events in the news that are comparable in destructiveness and lethality to the Solomon story - by both real and fake mothers. There was a terrible story in the just last

        • Say what? I'm sorry, was it the "I'm not a Christian" line? Should I have said, "I'm not a Christian, Muslim, or Jew" instead? I know you're just trying to troll, but you're confusing me.
        • What I mean by that is that most of western literature is influenced by the Bible. If you don't know the stories, you won't catch half the references in most of the more important writings of the last 2,000 years.
  • all that are doing is giving MS a chance to prove that they invented the technology before it was patented. This is not unusual.

    It is also why there are forms of invention protection you can use when shopping around for investors.

      • Re: (Score:3, Interesting)

        by rs79 (71822)
        "On the other hand, Netscape has had plugins since about 1994, so both patents should be declared void."

        In the fall of 1993 Jim Mercer showed me a mpg plugin for NCSA Mosaic in Toronto.

        (I quit my consulting gig the next day to do web stuff)

  • See why I don't like software patents (Score:5, Insightful)

    by Marc D.M. (630235) on Friday June 01 2007, @01:29PM (#19355193) Homepage

    See why I don't like software patents, because they're stupid and everyone gets hurt.

    Unless of course, you manage to patent something that a large company will have to pay you $500+ million for. But if that's my large company, I'll be upset.

    At this rate, we might as well patent integration and differentiation.

  • All Slashdot users apply for the same patent. Then we can all fight for the baby.

  • In other news ... (Score:3, Funny)

    by WrongSizeGlass (838941) on Friday June 01 2007, @01:35PM (#19355293) Homepage
    ... the USPTO issued itself a patent on issuing Identical patents. This new patent, along with its other patents for issuing Holy Crap Obvious patents and Why Not patents will now allow it to sue itself under the latest incarnation of the Recursive Rules of Litigation.
  • They keep going on about Linux and how it infringes on their patents. I'm sure Microsoft's products infringe on quite a few too, it's just many companies don't have the time and money to spend suing Microsoft.
  • Butcher the patent and send both of them home.
  • Can they just bust microsoft for copyright infringment now?

  • IsNot Patent (Score:3, Funny)

    by Nom du Keyboard (633989) on Friday June 01 2007, @02:20PM (#19356105)
    Eolas: It's the same patent!
    Microsoft: IsNot!
    Eolas: How can you say it IsNot the same patent?
    Microsoft: because we've patented IsNot, [slashdot.org], which means we can say it, and you can't!
    Eolas: IsNot IsNot IsNot!
    Microsoft: Lawyers!!!
  • 1) Microsoft has a patent office that spends its days generating patents based upon other people's work and the Eolas patent just ran through the mill.
    2) Microsoft thinks, perhaps knows that they can get away with anything because its not about what your patent says but about how much money and bull you can throw behind it. In that event they elected to coopt the Eolas patent given how much fun they have had with this and the whole affair is really just a big kiss my ass to Eolas.
    3) Microsoft is hoping to
    • lemme guess, somebody patented enumerating three possibilities with a summary stating there are three possibilities, so you had to work around that.

  • Could be valid, but shouldn't matter. (Score:4, Interesting)

    by Kaenneth (82978) on Friday June 01 2007, @04:23PM (#19357953) Homepage Journal
    When this idea was 'invented', web browsers were new, and the idea of a browser plug-in was to allow the playing of media, like .GIF's, .WAV's, and .FLI's on a web page.

    Taking that idea of a plug in, writing one that makes it's own connection to a server to provide interactive data appears to be the basic 'invention'.

    When I looked through Google Groups (USENET Archive) I could find nothing mentioned prior to then that mentioned an interactive plugin.

    My thought is, because it's such a bad, horrible, wrong idea.

    Browser plug-ins are not portable, between platforms, OS's or browsers. They run in native code, and need hardware access to render video/audio and access the network making them difficult to secure. They hurt maintainability, accessability and localizability. They can be used for DOS attacks on third parties. Have version compatibility issues, etc. etc. You're basically throwing away the entire point of a standards based browser, in favor of a single-use executable.

    Patenting browser plugins that get embedded in pages was like patenting shooting yourself in the foot.

  • Prior art from 1997: The applet tag! (Score:3, Informative)

    by NWprobe (28716) on Saturday June 02 2007, @03:54AM (#19361767) Homepage
    Plugins was introduced by html 3.2 on the 14th of january 1997. That's prior art to any of the patents by more than 3 years. It cannot be patented.

    HTML 3.2 adds widely deployed features such as tables, applets and text flow around images, while providing full backwards compatibility with the existing standard HTML 2.0.


    http://www.w3.org/TR/REC-html32/ [w3.org]
    • I can't speak for all /.ers, but I for one hate software patents much more than I hate Microsoft. Specifically, I use Microsoft products to help me do my job, and software patents potentially interfere with my ability to do my job. My code is already protected by copyright, all patents would do is create weak and stupid barriers to entry for our competitors.

      • Re:No. (Score:4, Interesting)

        by CastrTroy (595695) on Friday June 01 2007, @01:46PM (#19355477) Homepage
        This is my biggest beef with software patents. Software already has copyright protecting it. It also has trade secrets protecting it (at least in closed source software). And it has patents. And in all the patents i've seen, I've never seen a full source code disclosure of a working model. So, now when the patent expires, you still can't dupicate it (assuming it's not trivial) because you have to figure out all the source code on your own. As far as I'm concerned, copyright and trade secrets should be enough to keep your software safe.

          • Re:No. (Score:4, Insightful)

            by CastrTroy (595695) on Friday June 01 2007, @02:49PM (#19356539) Homepage
            But software is more like a creative work than a physical object, so you might want to compare it to books. You get a copyright on a book, so that people can't print off copies of your book and make money off it. Imagine if you could get a patent on a book, such that nobody else could write a book with a similar plot. We'd have a lot less books, or a lot more litigation going on in the book making industry. You couldn't even start to sit down and write a book without reading through thousands of patents on books that people had written. It would be fairly impossible for two authors to come up with exactly the same book, but you could probably find lots of books with similar plots, and similar pieces of text. Just like with software. Presented with the same problem, most programmers will probably come up with very similar methods of solving the problem. I guess it's more of a problem with patents in general than with software patents. With so many patents out there, how are you supposed to know if you are infringing on something, and if you take the time to do the research, to see if you are infringing, then it will take you years before you can even start developing something.

    • This is a GOOD patent because it can screw Microsoft. Right?

      Let me sum up my disagreement in a single line:

      "Go Microsoft! Rah, rah, rah! If you can't beat them no one can!"

      Ugh. I feel dirty now.

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