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'Eolas' Browser Plug-in Patent Case Rises Again 107

Posted by Zonk
from the return-of-the-living-patent-case dept.
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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'Eolas' Browser Plug-in Patent Case Rises Again

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  • by bbernard (930130) on Friday June 01, 2007 @02:24PM (#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.

        • by Frosty Piss (770223) on Friday June 01, 2007 @04:02PM (#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

            • Parent wrote:

              a. click a link
              b. figure out what the link is pointing to
              c. read the instruction at the location the link is pointing to
              d. identify associated system command and
              e. execute!

              you mean they've patented the drive-by trojan/virus download?

          • by kisrael (134664) on Friday June 01, 2007 @04:34PM (#19357225) Homepage
            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.
            • by Artifakt (700173)
              Requiring the government to impose a standard selectively on certain individuals or corporations? There's some areas where I think that's actually a good idea, and you may have found another one - But:

              Do we really have to go over why a lot of people will reflexively think this sounds like a very bad thing?

              You know, if you're going to propose something that sounds like tenderizing the dead Irish babies by beating them with the carcasses of the dead baby seals, you just might want to mar
          • 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

            • by samkass (174571)
              I agree that the Eolas patent is obvious, but you can't just look at something and say "I could have thought of that!" and expect to overturn a patent. Basically, one can show "non-obviousness" in a few ways, including commercial success, fulfilling a long-standing need, or having succeeded where others failed at the task targeted by the patent. Examples of any of these are admissible evidence in court in support of a patent.
            • 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

      • by ratboy666 (104074)
        Actually, the Microsoft patent pretty much describes groff/troff being able to run external commands. They do use the word "automatic" in the patent... but they seem to mean "automatic when a link is clicked".

        But that isn't stated. Which means the combination of a markup language with external program selection has been done. The only NEW thing is the addition of a lookup table. I would argue that the shell implements the lookup table aspect (and, in certain systems, is implemented that way -- eg. VMS DCL).
    • 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.
    • by dattaway (3088)
      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.
    • by Lockejaw (955650)
      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.
      • by x2A (858210)
        Doesn't matter when it was granted; matters when the application was filed.

    • 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
      • You know, your suggestions are actually pretty close to the Graham factors that are "secondary indicia" of non-obviousness:

        -- long felt need in the industry;
        -- acclaim from others in the industry;
        -- success in the marketplace;
        -- evidence of copying;
        -- unexpected results;
        -- offers to license the technology.

        None of these prove that a particular invention is non-obvious, but they can be used to help establish non-obviousness.
    • 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.
  • by Binestar (28861) on Friday June 01, 2007 @02:26PM (#19355143) Homepage
    Worked for King Solomon! Just split Microsoft in half, Applications apart from OS and we're all set!
    • by spun (1352)
      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.
      • by Binestar (28861)
        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!
      • by aichpvee (631243)
        I just read the Bible for its literary value.

        Which sadly isn't much. I much prefer the re-retellings of those stories that have come out since instead of the retellings that wound up in the bible. More refined and less whining.
        • by spun (1352)
          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.
          • Re: (Score:1, Funny)

            by Anonymous Coward
            What a load of garbage, I don't even know where to start with that bogus claim.
          • by aichpvee (631243)
            Oh, I know what you meant. I just prefer the re-retellings because the versions that wound up in the bible are pretty weak. Though I do love Genesis 38. If that isn't begging for a theatrical remake, then nothing is.
          • Most literature from the last 2000 years is garbage (to me anyway). Worse, we're forced to read and write about in in school in favor of stories that are actually fun to read. Travesty, that what it is, a travesty. If I ruled the world I'd burn all books, long live teh internet!
      • And it is because... (Score:4, Interesting)

        by jd (1658) <imipak@yaCOLAhoo.com minus caffeine> on Friday June 01, 2007 @03:05PM (#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.

        • by JohnFluxx (413620)
          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.

          • by jd (1658)
            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

            • by JohnFluxx (413620)
              The reason you do see it in the news is because the world is a big place, and because such events get newspaper attention. There are 6 billion people on this planet. It's perfectly okay for me to state it's very rare, even if there's a newspaper report on such an event every week.

              It's a case of statistics though. If you take a couple at random that are arguing over a baby, how likely is it that the fake mother will be okay with the baby being killed?
              • by jd (1658)
                Oh yes, you are absolutely right in saying that it's extremely rare. So rare that it's a motif used in some of the darker works of horror throughout history. The odds of the scenario you outline resulting in the fake mother being ok with the baby being killed are about on-par with the odds of someone carrying a highly contagious disease for prolonged periods of time in perfect incubation conditions and perfect contamination conditions without affecting a single individual. It's very very very rare, so unima
      • No no, see, because Kramer told Newman he would rather Elaine have the bicycle than have it sawed in half, while Elaine didn't loudly protest, Newman knew Kramer was the one who truly cared for the bike.
    • King Solomon offered to cut the baby in half to find out who the real mother was, since the real mother wouldn't do that to her baby. In this case the appropriate parallel would be to ban browser plugins to both Microsoft and Eolas. Since Eolas is little more than a PITA and doesn't have a product of any kind, they shouldn't be bothered by that at all, which by analogy with Solomon's decision would give the patent to Microsoft.
  • by geekoid (135745) <dadinportland @ y a hoo.com> on Friday June 01, 2007 @02:27PM (#19355155) Homepage Journal
    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.
    • by jrumney (197329)
      Microsoft were 4.5 years late (as usual).

      Inventors: Doyle; Michael D. (Wheaton, IL)
      Assignee: Eolas Technologies, Inc. (Wheaton, IL)
      Appl. No.: 09/481,984
      Filed: January 11, 2000

      Inventors: Beezer; John L (Redmond, WA), Silver; David M (Redmond, WA), Zeman; Pavel (Kirkland, WA)
      Assignee: Microsoft Corporation (Redmond, WA)
      Appl. No.: 10/870,472
      Filed: June 18, 2004

      On the other hand, Netscape has had plugins since about 1994, so both patents should be declared void.

      • Re: (Score:2, Informative)

        by mavenguy (126559)
        Except you missed a few things...

        Inventors: Doyle; Michael D. (Wheaton, IL)
        Assignee: Eolas Technologies, Inc. (Wheaton, IL)
        Appl. No.: 09/481,984
        Filed: January 11, 2000


        CROSS-REFERENCE TO RELATED APPLICATION

        This application is a continuation of and claims the benefit of U.S. Provisional Application No. 60/115,502, filed Jan. 11, 1999, the disclosure of which is incorporated herein by reference.

        Inventors: Beezer; John L (Redmond, WA), Silver; David M (Redmond, WA), Zeman; Pavel (Kirkland, WA)
        Assignee: Microso
      • 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)
  • by Marc D.M. (630235) on Friday June 01, 2007 @02:29PM (#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.

  • Since Microsoft already paid a licensing fee as a result of the law suit, seems pretty cut and dry. Either both should be rejected, or Eolas keeps the golden goose.
    • by KarmaMB84 (743001)
      That makes little sense... What does Microsoft's paying for a license as a direct result of intervention by the courts (which could be overturned) have to do with them proving they were the real inventor?
  • by C_Kode (102755)
    All Slashdot users apply for the same patent. Then we can all fight for the baby.
  • by WrongSizeGlass (838941) on Friday June 01, 2007 @02:35PM (#19355293)
    ... 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.
  • And cut the baby in half for them to share. Let's see who's willing to give it up.
    • ... for there to be TWO patents out there, each for half the technology, with Eolas having one, Microsoft the other?

      What they'd do is cross-license with each other, and form a cartel to squeeze the rest of us.

      Splitting patents is like chopping starfish up and throwing the pieces back into the bay.
      • by iminplaya (723125)
        What they'd do is cross-license with each other, and form a cartel to squeeze the rest of us.

        Now wait a minute. Are you saying we don't have exactly that already?
      • by Dr. Evil (3501)

        Eolas doesn't need to cross-license, they don't have any products, just patents. Their business is to license them out and sue people.

        If they *did* have products, then Microsoft would sue them into the ground and might only let them live if they decide to cross-license or sell out.

  • by gilesjuk (604902) <.giles.jones. .at. .zen.co.uk.> on Friday June 01, 2007 @02:42PM (#19355411)
    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?
  • USPTO
  • by Nom du Keyboard (633989) on Friday June 01, 2007 @03:20PM (#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
    • Re: (Score:3, Funny)

      by marcello_dl (667940)
      lemme guess, somebody patented enumerating three possibilities with a summary stating there are three possibilities, so you had to work around that.
  • Why don't we settle this roman-style and eradicate the patent from both portfolios ? This patent has been used as a weapon... Who would you rather give a gun to: a gangster or a thug ? Either one's going to hurt you with it.
  • ... there is a time limit from fist publication of an invention to when it can be applied for a patent. If that time is exceeded then no patent will be granted.
    The case itself (not to mention when the USPTO first granted the patent) is far older than that time limit.

    Obviously if MS can prove they invented it first, then both patents are invalid.
    Eolas because they were not the first to invent and MS because the technology was in use far longer than allowed, prior to their patent application.

    This can also be
  • by Kaenneth (82978) on Friday June 01, 2007 @05:23PM (#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.
  • if you RTA you notice that this one is copy pasted from ars techncia which at least was paraphrased from the seattle paper entry from bloomberg news.

    which begs to ask the question: How many licks does it take to get to the center....
  • Our company spent upwards of half a million dollars revising code so that the 'click to activate' crap wouldn't show up in IE. Our team spent at least $40k.

    Though mildly irritating for your average at-home browser, a message saying anything about 'clicking to active' an 'Object' is a barrier of entry for someone who is using software to learn to read at a readiness level; we couldn't just 'leave it be'.

    Now that it gets reversed? I'd like to have that chunk o' change back, that's for sure.
  • by NWprobe (28716) on Saturday June 02, 2007 @04:54AM (#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]
  • will the the patent madness end?

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