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Patents The Courts

Invalidation of Eolas's Web Patent Claims Upheld 72

Posted by Unknown Lamer
from the ding-dong-the-troll-is-dead dept.
New submitter Ajay Anand writes with news that Eolas's web patents are really dead (the infamous browser plugin patent that forced Internet Explorer to change how it activated plugins). After Eolas sued a number of companies, last fall a jury found the patents invalid; Eolas naturally mounted an appeal. But a panel of judges simply affirmed the jury decision (PDF). A quiet ending to a decade of patent trolling.
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Invalidation of Eolas's Web Patent Claims Upheld

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  • at what cost? (Score:2, Insightful)

    by Anonymous Coward
    So... how much money was spent to make the right decision?
    • by Anonymous Coward

      At least $565 million, which was the amount owed by Microsoft and the University of California.

      Numerous others signed licensing agreements.

      http://en.wikipedia.org/wiki/Eolas

      • Re:$565+ million (Score:4, Informative)

        by rijrunner (263757) on Tuesday July 23, 2013 @06:07PM (#44365881)

        Actually, the University of California is *owed* money. It does not owe money. The University of California is the original patentee.

      • It's not all a matter of dollars and cents. Patents effectively block others from using technology/methods which fall within the scope of the patent, regardless of whether or not it may be the most efficient/commonsensical way of doing things.

        Here is a description of the Eolas patent [cnet.com] :-

        The '985 patent, originally filed Aug. 9, 2002, involves a program embedded in a Web page--or "hypermedia document," as the patent language calls it more generally. Here's an excerpt from the patent abstract's description of

        • by Khyber (864651)

          "n the case of IE the alternative proposal was to require users to click on a dialog box for every ActiveX control that appeared on a page."

          That should have been the default fucking behavior in the first place.

    • by Anonymous Coward

      It doesn't matter. Microsoft, Apple, Samsung, Google and others paid for this result, didn't they?

      • Re:at what cost? (Score:4, Insightful)

        by GumphMaster (772693) on Tuesday July 23, 2013 @07:22PM (#44366459)

        Last I checked it was the State that paid for judges, court officers, court facilities, jury expenses, etc. It matters because tax payer money was expended supporting a series of shameless private money-grabs through through to its (some would say inevitable) conclusion. The time and money expended from public coffers could have better been spent on legal matters of public worth.

        • by sg_oneill (159032)

          Do courts charge costs in the US in civil cases?

          • I assume so. However, if it is anything like Australia the award of costs is to the winning party to partly (only) offset their costs in bringing the action. It is not the cost of the court itself. Some of the court's actual costs are recouped through fees for lodgement, transcripts and the like.

        • Yeah, isn't it awesome how the serfs get to fund the battle domes for the rich boys' games? Let's keep telling them that society would fall apart if they didn't.

    • by ackthpt (218170)

      So... how much money was spent to make the right decision?

      So far...

      Eolas are like Freddy or Jason, no matter how many times you think they are dead, they rise again. SCO does this, too.

  • by Anonymous Coward on Tuesday July 23, 2013 @05:28PM (#44365491)

    Do they have to now give back the money they extorted?

    If not, they won.

    • by mspohr (589790)

      I don't know about these particular "settlements" but typically a patent troll will have a clause in the settlement contract that specifies that even if the patent is invalidated later, the payment is still due.

      • by TheSpoom (715771)

        I'm not a lawyer but I would imagine such a clause would be invalid on its face due to the lack of consideration on the part of the patent holder at that point. The licensee would essentially be paying for nothing.

        Perhaps they got more creative than I'm thinking with the contract terms.

        • by MightyYar (622222)

          Perhaps they got more creative than I'm thinking with the contract terms.

          I'm thinking it would be as simple as licensing multiple patents, so that the consideration is the remaining patents in their portfolio.

        • by gstoddart (321705)

          The licensee would essentially be paying for nothing.

          Which is essentially what happens now.

      • by Genda (560240) <mariet@nOSpAM.got.net> on Tuesday July 23, 2013 @06:02PM (#44365837) Journal

        Precisely, in fact the entire valid/invalid thing is moot. Because they chose to settle out of court, they are beholden to the legal whims of he with whom they settle. So no matter how egregious the terms and conditions, they are the terms and conditions to which they agreed.

        Now a real interesting development happened a little while back, John Fogerty was sued by the current owner of CCR IP, for plagiarizing himself with his newer music (in the early 90s his career took off again when the 20 years of bondage ended and he could make and sell new music that didn't automagically belong to someone else.) In court the greedy bastard that sued him made it perfectly clear owning CCR wasn't enough, that even though he was no longer under contract, he had every intention of keeping John under his thumb for the rest of his natural life and take everything he made for his own benefit. The Judge informed said scumbag that a songwriter sounds like that songwriter because HE IS THAT SONGWRITER... that CCR songs sound like CCR songs and one would only expect that future songs by that artist might have a similar style. The case was crushed.

        But here where it get's interesting. Part of the reason nuisance suits have been so effective is that defending them, leave you with a terrible court expense whether you win or lose. John asked the court, can I sue this ass-hat to recover my court costs? The judge said go for it, and John got most of 2 million dollars in court costs back. If these Corporate giants are so inclined, they might want to spank Eolas so hard that their great grandchildren hurt. This would set a very cool precedent to future Patent Trolls, yes, the rewards are great, but if your patent is 99% smoke and you go up against guy with legal larger than the population of Rhode Island, well you might just wanna think twice.

        That and start-ups should get together and create Troll Insurance. Bring in the EFF and couple of other heavy hitters and clean this Troll problem up once and for all. By all means, someone infringes on your patent, your personal invention, you deserve recompense. You decide you're going to build a portfolio of bullshit patents to tax society because you're a greedy scumbag, not so much.

        • Re: (Score:2, Insightful)

          by plover (150551)

          By all means, someone infringes on your patent, your personal invention, you deserve recompense. You decide you're going to build a portfolio of bullshit patents to tax society because you're a greedy scumbag, not so much.

          But this is where I have a problem. Whether it's owned by a greedy scumbag or not, the invention is worth something.

          (1) The inventor deserves recompense. Does that mean the inventor has to stand on a factory line and assemble each and every widget that uses his invention in order to get paid for it? Obviously not.

          (2) In order to make money from his invention, he licenses it to a factory who makes the widgets including his invention. So we have someone licensed to use it, and the inventor getting paid.

          • Re: (Score:1, Insightful)

            by Anonymous Coward

            Whether it's owned by a greedy scumbag or not, the invention is worth something. ... The inventor deserves recompense.

            Agreed with in principle, but:

            The patents were invalidated. That means the person or company who filed them did not invent anything, thus did not invent anything that is "worth something", and thus does not deserve recompense.

            They should be held liable for all patent licensing fees (and any fines) paid to them for the invalidated patents. Court costs and damages as well, if they were kn

          • I think 90% of what you said is right. The problem, I think, is the assertion that "lawyer & investor" is a nicer way of saying "patent troll". Sometimes that's a euphemism, sometimes it's not.

            "Dancer" sometimes means "stripper" often means "hooker". But not always. I have a friend who is a professional dancer. She is not a stripper. She even dances with a pole, yet she doesn't take off her clothes.

            I learned the other day that more than half of all patent suits are filed by just 16 NPEs. vThere are mi
            • by plover (150551)

              OK, but what makes a patent troll different than an investor plus a lawyer? There has to be something that makes the trolls stand out. Is it the volume of patents? Why is that wrong? Is it the aggressive lawsuits? Can an inventor not defend his rights? Is it the quality of those patents? If they haven't been invalidated in court, again, why?

              To use your analogy, a hooker performs a different act than a stripper, or a dancer, and that act is considered illegal. What act are the trolls performing that is diff

          • by sjames (1099)

            But that's not what happens. Instead, the troll buys up the patent before a single widget is produced. Then they stick it in a filing cabinet and hope someone accidentally steps in it. But they don't jump right up and try to ink a deal, they sit back and wait for the poor soul who stepped in their patent to start making real money, THEN they strike.

            Sometimes the trolls even help the 'inventor to file the patent. In that case, they obfuscate the language of the patent as much as possible to minimize the odds

        • by thomst (1640045)

          Genda observed:

          Now a real interesting development happened a little while back, John Fogerty was sued by the current owner of CCR IP, for plagiarizing himself with his newer music (in the early 90s his career took off again when the 20 years of bondage ended and he could make and sell new music that didn't automagically belong to someone else.) In court the greedy bastard that sued him made it perfectly clear owning CCR wasn't enough, that even though he was no longer under contract, he had every intention of keeping John under his thumb for the rest of his natural life and take everything he made for his own benefit. The Judge informed said scumbag that a songwriter sounds like that songwriter because HE IS THAT SONGWRITER... that CCR songs sound like CCR songs and one would only expect that future songs by that artist might have a similar style. The case was crushed.

          But here where it get's interesting. Part of the reason nuisance suits have been so effective is that defending them, leave you with a terrible court expense whether you win or lose. John asked the court, can I sue this ass-hat to recover my court costs? The judge said go for it, and John got most of 2 million dollars in court costs back.

          The scumbag in question was Saul Zaentz, owner for many decades of Fantasy Records, in Berkeley, CA. (CCR started as a high-school band called the Golliwogs in El Cerrito,-about a ten-minute drive from Fantasy's studio). FWIW - he spent a large amount of the songwriting royalties he screwed Fogarty out of making the movie Amadeus.

          He sued Fogerty over the song, "The Old Man Is Down The Road" - but what pissed him off enough to doggedly pursue the case was "Zaentz Can't Dance" (later changed to

        • by rtb61 (674572)

          However contract law is bound by criminal and nothing in a contract can ever exceed the bounds of criminal without invalidating the whole contract. So would a contract where the original patent ceases to exist have merit ie. paying something for nothing and only doing so under extortion of threat of bankruptcy due to civil action. So could the contract be invalidated, regardless of conditions of contract, where the initiating cause of the contract proved false, especially as the direct fault of a third par

    • by steelfood (895457)

      No, they still won. They held back a whole decade of innovation and advance. A decade might be nothing for aerospace, but it is a long time when it comes to software.

      Arguably, they could have spurred some advances by forcing engineers to come up with clever solutions to work around it. But the original patent was so over-broad that there probably wasn't such a solution.

  • If only that were true...

  • Not quite a troll (Score:5, Interesting)

    by rijrunner (263757) on Tuesday July 23, 2013 @05:46PM (#44365651)

    A lot of people are jumping in here claiming patent troll, but I remember enough about where the state of the Internet was in 1993 to feel that he was sincere in these patents. They did release a browser. they did offer licensing.

    At the time he started development, there were under 100 total websites on the entire planet. A lot of people were pushing applications development to direct connect to services. For example, If you played internet chess, you opened XBoard, then pointed at a chess server. A lot of others were pushing other application specific services. There were competing paradigms in how things were going to develop. The whole idea of a web browser handling everything was not even close to being universally accepted.

    So, he gets a patent. Launches a browser, but after Netscape launched their browser. No real traction with VC's as they were dumping their money into providing the services. The browser tanks, so he offers the tech for licensing. Microsoft among others says no. Then, Microsoft submits a set of patent applications that cover the exact same stuff under different names, then incorporates that tech into IE.

    I dunno. Sure. Looks like a troll. He is suing to get money from his invention. But, then again, where Microsoft is concerned, he had a very solid case that they stole his ideas. He met with them, then they declined to license the technology, then they submitted patents covering the same material.

    Now, given what we know now, embedded apps within HTML looks obvious, but there were other competing ideas and this one just won out. From our perspective in 2013, this was a clear winner, but when he patented it? Not so sure. And, under current laws of first-to-file, this patent would have held up.

    I think the main problem I have with people claiming trolls is this: Whether a product is successful or not - in this case a browser, the IP behind it is still valid. If I invent a widget, but get swamped by companies with bigger bankrolls, that does not mean people can just take those ideas after my business goes under. IP is still property. The *only* reason this was overturned by prior art is because Microsoft decided it was cheaper to void their own patents rather than pay the lawsuit they lost.

    Was there prior art? Yes... by a couple months. Did he know about it? There is enough doubt in that to overturn the patent. Was he strictly a troll? Nope. The date here is so early in development of the WWW that there were competing paradigms and multiple approaches being argued and discussed. He legitimately thought this was a valid patent.

    • by rudy_wayne (414635) on Tuesday July 23, 2013 @05:56PM (#44365775)

      If if what you say is true, and I'm not sure it is, you have completely missed the point. Eolas was awarded bogus patents. They did not "invent" anything that should have be patentable.

    • This. Mod parent up. If only we could get some informed opinion on Slashdot as opposed to categorical judgments based on group think and most often without even RTFA.
      • Re:Not quite a troll (Score:5, Informative)

        by Jaime2 (824950) on Tuesday July 23, 2013 @06:27PM (#44366053)
        The patent was the poster child for "obvious patent". The reason they were so successful in court was that everyone who created a web browser added similar functionality. The standard response to this is "of course it's obvious in hindsight", but the court case shows that someone implemented the idea before Eolas, putting the nail in the coffin of that train of thought.
        • So he goofed not noticing, or he tried to scammily patent something he new was already invented?

          Those are two completely separate ways to understand what happened.

      • by Khyber (864651)

        " If only we could get some informed opinion on Slashdot"

        Your chosen champion is full of shit so trying to raise them higher than your supposed standards is a stupid move, pleb.

        Only 100 websites in 1993, my motherfucking ass.

    • Sorry, but methods and ideas should not be patentable. Period. It was the correct decision.

    • A lot of people were pushing applications development to direct connect to services. For example, If you played internet chess, you opened XBoard, then pointed at a chess server.

      And the Internet has since come full friggin' circle, with dedicated mobile applications to access particular services.

    • Re:Not quite a troll (Score:4, Informative)

      by Sique (173459) on Tuesday July 23, 2013 @06:33PM (#44366095) Homepage
      I remember the time too. And I know that embedding objects into documents was all the rage in 1993. And even from systems to systems. CORBA's first spec was published in 1991. OLE and COM were combined into DCOM about the same time. I had university lessons in the CORBA and the DCOM object model at the time. So I would call Eolas' patents obvious in 1993.
    • by Darinbob (1142669)

      I agree. Even if the patent is invalidated, it does not make the wannabe patent holder into a troll. I think people are seriously misusing that term in their haste to label everyone a troll. A patent troll should be a set of lawyers attempting to extract license fees from a patent or invention they did not originally create, or an attempt to extort license fees through fear of litigation. However someone who did the work (or thought he did) and created the patent and is attempting to make money from tha

    • by Camael (1048726) on Wednesday July 24, 2013 @12:39AM (#44367893)

      They did release a browser. they did offer licensing.

      Right after another browser had been released, two years prior, incorporating the very same elements Eolas patented. What the inventor of this prior browser freely gave to the world (he declined to patent it), Eolas tried to keep for themselves by patenting it.

      Lets talk about specific facts instead of hand-wavy personal feelings.There was prior art. [cnet.com]

      One piece of prior art in particular, the Viola browser, invented by Perry Pei-Yuan Wei, an artist, software engineer and then a student at the University of California at Berkeley. That browser dates back to 1991 and its plug-in capabilities to 1992, nearly two years before Eolas filed for its patent.

      Since you are referring to the state of the internet at that time, lets hear from Tim Berners-Lee [wired.com] himself how it was like :-

      Berners-Lee described Viola as “an important part of the development of the web.”

      The jury was shown an e-mail from Pei Wei to Berners-Lee dated December 1991 — almost two years before Doyle’s invention — which read in part: “One thing I’d like to do soon, if I have time, is to teach the parser about Viola object descriptions and basically embed Viola objects (GUIs and programmability) into HTML files.”

      Later Tuesday, Wei would testify that he had demonstrated interactive elements working in the Viola browser to Sun Microsystems in May 1993 — several months before Doyle claims to have come up with his invention.

      Berners-Lee described how the web community at that time wasn’t focused on patents or even money — Wei simply put his invention online for free.

      If you read the decision of the US Federal Court of Appeal [typepad.com], it is clear that Eolas was aware of the invention of Viola because Pei Wei himself told them on 31 August 1994. Eolas went to Pei Wei's website and downloaded and read his paper. They went ahead anyway and filed their patent on 17 October 1994.

      As for whether or not the Eolas patent was obvious, it was so obvious it was even mentioned in the 1991 letter to Berners-Lee.

      So. If you rush to patent something obvious that was already shown by someone else, so that you can use the patent to sue large numbers of companies for money, what are you called?

    • by Khyber (864651)

      "At the time he started development, there were under 100 total websites on the entire planet."

      Yea, uhhh, the wayback machine says you're full of shit, buddy.

      And if you knew what you were talking about, you'd have already used the wayback machine as a source for your info.

      PROTIP: 1993 saw well more than 100 websites, you lying shill.

  • by fnj (64210) on Tuesday July 23, 2013 @07:36PM (#44366541)

    Rot in peace you low-life slimy fat lazy pigs.

  • Remember, all of this patent litigation is the fault of the anti-Vietnam War movement's scapegoating of science. The Mansfield Amendment(s) banned the Department of Defense from funding basic research in the universities, breaking the system that had come into existence after World War II demonstrated the value of government funding of basic research. The funding was transferred from the politically powerful Department of Defense to the politically powerless National Science Foundation.

    With funding crat

  • What sucks is under American rules they don't have to pay their victims massive legal bills defending the suit. The victims get nothing to cover this or the incredible waste of time.

"Irrationality is the square root of all evil" -- Douglas Hofstadter

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