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Two Strikes for Eolas Plug-In Patent 190

theodp writes "The USPTO has handed Microsoft a second victory in a dispute over a browser plug-in patent that could roil the Web if upheld, rejecting arguments by Eolas and the University of California that technologies cited as prior art by Microsoft and its W3C allies that persuaded the USPTO to open a reexam were irrelevant. Separately, Microsoft is attacking Eolas and the UC on a second front, asking the U.S. Court of Appeals to overturn a $565 million judgment, this time based on prior art that's completely different than that which it urged the USPTO to consider and the W3C to stand behind."
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Two Strikes for Eolas Plug-In Patent

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  • by Anonymous Coward on Wednesday August 18, 2004 @10:05PM (#10008672)
    we do have a pay-as-you-go government!
  • by numist ( 758954 ) <spam@nosPaM.numist.net> on Wednesday August 18, 2004 @10:05PM (#10008678) Homepage
    "We pay our lawyers more."
  • by Anonymous Coward on Wednesday August 18, 2004 @10:08PM (#10008691)
    USPTO take another look at Acacia Research's streaming media claims, too.

    (If I wasn't in such a nice mood, I'd have written, "Take your head out of your ass, do what you have to do to completely reform how the USPTO reviews patents and then start reviewing and rejecting the huge lot of undeserved patents out there." But I'm in a good mood.)
  • by hashish ( 62254 ) on Wednesday August 18, 2004 @10:09PM (#10008701)
    I think that MS is being sued because they have the money, not because they are infringing. The pluging ability in IE is one thing, but the way I read the patent the makers of the plugin are he ones infringing. Anyway if there is real prior art out there everyone who makes a plugin is going to be happy.
    • That first sentence should include the word "first". MS is being sued "first" because they have the money. Despite claims to the contrary, it seems pretty clear that Eolas will follow the money.

      In cases like this, where the patent holder claims to be trying to help the open source cause, they should help the cause by making the patent open source. Otherwise, they're vigilantes. They can do what they want, but there won't be any sympathy from me when they lose.
      • First, the point of patents is to allow others to see how your invention was made. For you to sell the same thing, you must pay a licensing fee. I'm not going to even partially validate your statement to make their patent "open source."

        How do you propose to do such a thing?

        You can't compile the patent. You can't modify the patent. Perhaps you meant simply "abandon the patent and go straight to public domain."

        In that case, your comment displays an unenlightened understanding of the actual events and the concepts guiding them. You don't deserve "insightful."

        Sorry.

  • by IGTeRR0r ( 805236 ) on Wednesday August 18, 2004 @10:10PM (#10008711) Homepage
    As with trademarks, maybe patent holders should be obligated to protect their patents or risk losing them. This patent was applyed for in 1994 and granted in 1998. Web browsers were using 'plugin' technology for a long time before Eolas brought up this stink.
    • by periol ( 767926 ) on Wednesday August 18, 2004 @10:15PM (#10008737) Homepage
      Yeah, but you're forgetting that the USPTO hasn't adjusted to the fact that computer technology works in doggie years, not human ones.
    • by sangreal66 ( 740295 ) on Wednesday August 18, 2004 @10:17PM (#10008747)
      Be careful what you wish for. Microsoft (which I don't believe has filed any patent infringement lawsuits to date) and IBM own patents on.. well, everything. To force them to file suits against everyone would certainly get rid of a lot of errneous patents, but it would hurt everyone in the short-term.
      • by jeffkjo1 ( 663413 ) on Wednesday August 18, 2004 @10:21PM (#10008776) Homepage
        Be careful what you wish for. Microsoft (which I don't believe has filed any patent infringement lawsuits to date) and IBM own patents on.. well, everything. To force them to file suits against everyone would certainly get rid of a lot of errneous patents, but it would hurt everyone in the short-term.

        I don't think thats necessarily true. If they were all forced to actually defend their patents, nothing would change. Microsoft is not going to sue IBM over it's patents just like IBM isn't going to sue Microsoft. As a result, the patents go away. I strongly support making patent enforcement mandatory. This idea that you can sit on patents until someone else is making millions on the same idea and then pounce on them is ridiculous. Use it or lose it.
        • This idea that you can sit on patents until someone else is making millions on the same idea and then pounce on them is ridiculous. Use it or lose it.

          It's the "uniqueness" of an idea that makes it an investable item, though. It actually works great, except when it gets to software.

          There needs to be a different system for software, with a much shorter duration, to allow the people who have the idea to cash in somewhat on their idea, but the system must be well funded in order to allow the PTO to hire the
          • It's the "uniqueness" of an idea that makes it an investable item, though. It actually works great, except when it gets to software.

            ...and the cotton gin.
          • It's the "uniqueness" of an idea that makes it an investable item, though
            I think for patents it's more the "uniqueness" of the implementation. If Pfizer got a patent on "a drug that increases sexuality" there would be no room for all the copycat stuff that is out there. Pfizer has the rights to the specific chemical compound, not the concept. The same thing should happen for software, companies should be able to protect their implementation, but not the general concept.
            Just my 2c
            • Pfizer has the rights to the specific chemical compound, not the concept. The same thing should happen for software, companies should be able to protect their implementation, but not the general concept.

              This is already the case. It's called copyright.
        • This idea that you can sit on patents until someone else is making millions on the same idea and then pounce on them is ridiculous.
          Perhaps we should gif up on the idea of software patents, so many of them are broken.
        • Microsoft is not going to sue IBM over it's patents just like IBM isn't going to sue Microsoft
          They will not necessarily sue, but they will just have the lawyers meet in a room and cross-license all their patents, thus giving legal support to each of them. I do however like the idea of making companies enforce their patents so we don't have RAMBUS type backhanded tactics.
        • This idea that you can sit on patents until someone else is making millions on the same idea and then pounce on them is ridiculous...

          Yes, it is. And the law agrees with you. Of course, IANAL, though...

          The Doctrine of Laches states that a plaintiff who unreasonably delays action to the detriment of the defendant loses the ability to collect damages due to the delay.

          In the case of intentional delay, the plaintiff would not be able to collect royalties for past infringement. If the defendant cont

      • by xigxag ( 167441 ) on Wednesday August 18, 2004 @11:04PM (#10008987)
        Even worse, under a defend-it-or-lose-it regime they wouldn't have to actually sue all the infringers. They could selectively grant royalty-free licenses to their friends and sue the crap out of their foes (i.e. open source vendors).
      • by killjoe ( 766577 ) on Thursday August 19, 2004 @12:14AM (#10009271)
        " Be careful what you wish for. Microsoft (which I don't believe has filed any patent infringement lawsuits to date) "

        Not true see http://www.ciol.com/content/news/2003/10304113.asp

        MS has been an awfully litigious company. They have sued dozens of companies for all kinds of stuff including trademarks, defamation, and yes even patent related stuff. There is no reason whatsoever to think that a company which has publicly stated it intends "vigorously defend our intellectual property" and has filed tons of lawsuits in the past will not sue over patent infringement.

        For all the astro turfers here are the links to just some of the reading material you might run into when you google for microsoft lawsuits.

        http://www.theregister.co.uk/1999/07/13/are_your _s ql_apps_streetlegal/
        http://www.mobiletechnews.co m/info/2003/04/11/1416 01.html
        http://southflorida.bizjournals.com/south florida/s tories/2004/04/26/daily19.html
        http://trends.news forge.com/trends/04/06/20/142024 5.shtml?tid=137&tid=147
        • " Be careful what you wish for. Microsoft (which I don't believe has filed any patent infringement lawsuits to date) "

          Not true see http://www.ciol.com/content/news/2003/10304113.as p

          MS has been an awfully litigious company. They have sued dozens of companies for all kinds of stuff including trademarks, defamation, and yes even patent related stuff. There is no reason whatsoever to think that a company which has publicly stated it intends "vigorously defend our intellectual property" and has filed tons of
    • by ergo98 ( 9391 ) on Wednesday August 18, 2004 @10:35PM (#10008851) Homepage Journal
      Even better, given that the patent office is obviously (hugely) fallible, patent holders should hold the liability that if they threaten a "patent violator" in any way, the "violator" has the right to instantly force a proof trial (no more patent blackmail, which is largely the unfortunate purpose of patents). If the patent itself is proven to be trivial/obvious to practitioners/with obvious prior art, the patent holder should pay all defendant legal costs, as well as a huge penalty for abusing the patent system with noise (which >99% of software patents are).

      This would be a huge victory for the software industry in general, while forcing the patent holders to consider their patent enforcement (or even applications - why bother will bullshit patents if they represent such a potential liability - don't bother unless you're sure) very seriously.
      • Patching a sinking ship isn't a good idea.

        It would save a lot more time, money, and effort to just have the USPTO do it right to begin with, as opposed to them approving a patent, then allowing lawyers and corporations with deep pockets to come along and easily blow it apart.

        How would you like to have a patent, only to have a multi-billion dollar corporation basically say, "oh screw them let's just violate it, then use or deep pockets to blow it apart later".
      • Even better, given that the patent office is obviously (hugely) fallible, patent holders should hold the liability that if they threaten a "patent violator" in any way, the "violator" has the right to instantly force a proof trial (no more patent blackmail, which is largely the unfortunate purpose of patents).

        I am not a lawyer, but I do read Groklaw ;-) What you are talking about does exist. It is called "declaratory judgement." IBM's counterclaims against SCO seek declaratory judement that they are no
    • by kramer ( 19951 ) on Wednesday August 18, 2004 @10:53PM (#10008937) Homepage
      No, no, no.

      Incredibly bad idea.

      Trademarks are of unlimited duriation. That's why you are required to defend it or lose it, because otherwise they would never expire -- people could buy up trademark rights from 200 years ago and start enforcing them.

      Patents on the other hand automatically expire after 20 years. There's no need to have a "defend it or lose it" because they're going to lose it anyway. Be patient.

      Also, keep in mind a trademark is just a name or a symbol as used in advertising. It might represent a few days of work by a graphic design person, or a couple of hours of brainstorming and focus groups. A patent can very well represent several years worth of someone's hard work.

      I wouldn't want to be the person to tell an inventor that he just lost the right to 5 years worth of work because he lacked the money to immediately sue the large company who simply copied his published patent.
      • Unfortunately, this assumes that the patent system is un-gameable, at least in regards to extending patents durations. That's very wrong; there are many ways to subtly, not to mention overtly "extend" a patent's duration, and these are most explotable by those who have the $ to put into an extended patent process (i.e. large companies w/ patent lawyers on retainer).

        Simply put, patents on non-physical inventions should be abandoned entirely or have a drastically shorter, less extensible lifespan. While 17
      • I had a teacher one time speak about patent law in how it applied to Polaroid instant cameras. Now, come and sit around me in a semi-circle pattern and stare in amazement as I tell you a story...

        Polaroid knew that once these new fangled instant cameras came out that everyone and their cousin would try and copy it. They would patent their initial design and would patent it and release it. They would continue to work on it but not update the cameras and a year before the old patent expires, they take out
        • I haven't seen a Poleroid camera in use other than their lame commercials in over 15 years.

          Great market position that.
        • If their competitors had done the same research and gotten there first, then patented their revisions to polaroid's patents, polaroid would have been screwed. A technique like that is a gamble; you're betting that no one else will do the same research you're doing and patent it before you do.
  • by stratjakt ( 596332 ) on Wednesday August 18, 2004 @10:12PM (#10008723) Journal
    Does an institute of higher learning actually buy into this no-duh software patent?

    Sad, I guess Universities are just like any other for-profit corporation these days.
  • by jeffkjo1 ( 663413 ) on Wednesday August 18, 2004 @10:17PM (#10008751) Homepage
    Hey, wait a second, I thought we only liked Microsoft on odd Tuesdays.
  • Consistency (Score:5, Insightful)

    by Landaras ( 159892 ) <neilNO@SPAMwehneman.com> on Wednesday August 18, 2004 @10:21PM (#10008780) Homepage
    I'm sure we're going to get several insightful jokes about Slashdot's collective head exploding due to two evils (software patents and Microsoft) coming together in a single article.

    After all, who are we supposed to root for?

    I believe the key in this situation is remembering that your belief in a right is perhaps best shown in whether you are willing to afford that right to an enemy.

    Is the right to develop software free from the unneeded burden and litigation threat of software patents important to us?

    I believe it is, and as such I cannot fully get behind the offensive use of software patents, even against an enemy such as Microsoft.

    - Neil Wehneman

    P.S. Have you donated to the EFF recently? [eff.org]
    • Re:Consistency (Score:5, Insightful)

      by Wolfbone ( 668810 ) on Wednesday August 18, 2004 @10:45PM (#10008896)
      "I believe it is, and as such I cannot fully get behind the offensive use of software patents, even against an enemy such as Microsoft".

      Right. But I'd drop the adjective 'fully': Neither Microsoft nor any other company is the enemy, except when they are actively promoting software patentability. Companies are amoral entities at best and we shouldn't expect them to behave with any measure of philanthropy or social responsibility - the most we can demand is that they act lawfully. The real enemies are the corrupt, incompetent or short-sighted politicians and legislators who make and administrate the laws that enable such companies to behave immorally and unethically, yet perfectly legally.

      • I included "fully" because I honestly do want to see Microsoft get hurt by this Eolas flap.

        Is that right of me? No, I don't think it is, and hopefully in time I'll be able to suppress this dangerously passionate hatred of the company that I have.

        Reason should prevail over emotion in an issue such as this. The trick is ensuring that happens.

        - Neil Wehneman
      • Re:Consistency (Score:3, Interesting)

        by Halo1 ( 136547 )

        The real enemies are the corrupt, incompetent or short-sighted politicians and legislators who make and administrate the laws that enable such companies to behave immorally and unethically, yet perfectly legally.

        In case of software patents, it has nothing to do with corrupt politicians and legislators. Software patents were introduced in the US (and Europe for now) without any political interventions whatsoever. It's the Patent Offices that grant such patents, and the courts that consider them valid. W

        • The Patent Offices don't work in a vacuum: If Lord Sainsbury [dti.gov.uk] told the U.K. PTO not to violate the letter and spirit of the EPC, they would be obliged to comply. Courts and Judges, who by their incompetent and short-sighted decisions build the case law that validates software patentability are acting as legislators too.

          I'm well aware of what is going on in some apparently mismanaged corporations but even so, they are only playing the game and their asking and arguing comes under promoting software patentab


          • The board of directors of Microsoft are not blindly allowing their 'I.P.' department carte blanche to damage their strategic interests though. Theirs is a deliberate policy but it is amoral not immoral - they genuinely believe it's in the best interests of their shareholders

            ... until they find themselves at the wrong end of the stick. I contend that management has been mislead by their IP department, and that this has happened in many large companies. It's not just bad for society as a whole, in the lo

        • Re:Consistency (Score:3, Insightful)

          by instance ( 805660 )
          This is false. Congress held hearings in several locations on the topic of software patents. I read the 600K+ of transcripts from hearings they held in California (talk about dull reading). Almost to a person, there was a stark division between two camps: the developers opposed software patents, largely arguing that "copyright and speed of innovation is sufficient"; the lawyers argued that patents were absolutely required.

          Now the last time I checked, there were a hell of a lot more lawyers in Congress tha

          • This is false. Congress held hearings in several locations on the topic of software patents.

            They did so after the fact. Have a look at this chapter [nap.edu] from the NRC book "The Digital Dilemma" (search for legislative branch).

            I read the 600K+ of transcripts from hearings they held in California (talk about dull reading). Almost to a person, there was a stark division between two camps: the developers opposed software patents, largely arguing that "copyright and speed of innovation is sufficient"; the la

      • Neither Microsoft nor any other company is the enemy, except when they are actively promoting software patentability.

        MS is always promotting software patentability and the legal protection if "IP".

        The real enemies are the corrupt, incompetent or short-sighted politicians and legislators who make and administrate the laws

        Who do you think are funding these laws? That is right, these big companies. Microsoft has dumped millions USD into the hands of the politicians. MS helped create this broken US legal

        • Yes, I know Microsoft is promoting software patentability and when it does so it's arguments must be countered vigorously but that doesn't mean you should show that you're willing to throw away your principles simply because it is your 'enemy' who is being harmed by the evil you claim to despise. Landaras understood that and my response to his original post was because I think it is counterproductive to harbour feelings of antipathy toward publically owned corporations. They will always do what they think i
      • "Companies are amoral entities at best"

        You should probably reword that sentence to read "corporations are amoral entities at best". Sole Proprietorships and regular partnerships, for example, are not separate from the owner in the same way that corporations are, and therefore are in fact as moral or immoral as their owners.
        • Yes, you are right of course and it's even possible for corporations to behave deliberately ethically (possibly as part of their business plan), it's just not something to expect or rely on.
    • Re:Consistency (Score:5, Insightful)

      by Jason Earl ( 1894 ) on Wednesday August 18, 2004 @10:58PM (#10008960) Homepage Journal

      Generally I would agree with you. Anyone defending themself in a software patent lawsuit deserves to win because software patents are evil. However, Microsoft is one of the major forces keeping the current patent regime in place. They are currently pushing for software patents all over the world.

      I am starting to believe that the only way that the current software patent mess is ever going to be cleaned up is for large and prosperous corporations like Microsoft (and IBM) to realize that it is in their best interest to do away with software patents. If IBM and Microsoft came out against software patents then the laws that support them would change fairly quickly.

      Groups like Eolas aren't the slightest bit interested in Free Software. They sued Microsoft because Microsoft has piles of money, and they aren't going to sue Mozilla because Mozilla has nothing. If Eolas scores a big payday then thousands of other small companies with nothing to their name but some patents and attack lawyers are also likely to join in the feeding frenzy, and eventually Microsoft will realize that software patents aren't in their best interest. The beauty of this business model is that you don't have to go through all the hard work of actually writing software. You just have to come up with an idea, patent it, and wait for someone to violate your patent. If companies like Eolas start winning lawsuits then Microsoft will almost certainly have a change of heart regarding software patents.

      Microsoft is hard at work creating roadblocks for Free Software with their growing portfolio of software patents. If Microsoft can't be made to feel the heat from these intellectual property companies then very soon it might become impossible for Free Software developers to write software.

      • I was along for the ride when Mike Doyle pitched Eolas to some of my relatives back in the mid-90's after the patent was applied for but before it was issued and I've gone to some of their stockholder's meetings. I have the following observations to make:

        1) Mike Doyle's father considered himself an inventor and had several patents. Doyle also considers himself an inventor. That's probably why, unlike many programmers, his first instinct when he thinks of a clever way to solve a programming problem is to
        • Your post was very interesting, thank you very much. However, it sums up in a nutshell what is wrong with software patents. There are only two cases where it makes sense to create software patents. The first case is the case of the huge and successful software business that creates patents to keep competitors from entering into their software markets. Microsoft, for example, is excited about software patents because they know that they can afford to file them, and their smaller competitors can't. Micro

    • People take religions, er, operating systems entirely too seriously here on Slashdot. Out in the real world, it's all about what you like that works already. Here, it's "Microsoft is the enemy but we can afford them this one victory." Enemy? Victory? Scary.
    • "After all, who are we supposed to root for?"

      A sane expression of the protection of ideas rather than the current system.

      "enemy such as Microsoft."

      Jesus. Slashdot can be so damned blinkered at times it's daft. Is your hatred of a corporate entity down to their business, their ubiquity or simply their alignment against der widdle penguin?

  • Good to hear (Score:4, Insightful)

    by lakeland ( 218447 ) <lakeland@acm.org> on Wednesday August 18, 2004 @10:23PM (#10008785) Homepage
    Between evil companies and evil patents, it's pretty easy to see which is worse.
  • I was sure no-one on the microsoft patent team was aware of the fact that patents are not supposed to be awarded on something that has sufficient 'prior art'. If they know this then why.... oh, nevermind.
  • I am scared (Score:5, Insightful)

    by Garabito ( 720521 ) on Wednesday August 18, 2004 @10:30PM (#10008824)
    that USTPO is only re-examinating this patent by request of Microsoft and its allies. From the article:

    On the second front, Microsoft's allies in the software industry last fall persuaded the Patent Office to initiate a re-examination of the patent on the grounds that it was awarded improperly.

    It's not that USTPO has realized that it has been granting bogus software patents, nor does it plan to change its attitude toward them.

    After all, we all know that Microsoft is right now a big patent filler and that USTPO is paid by patent aplication.

  • by sphealey ( 2855 ) on Wednesday August 18, 2004 @10:31PM (#10008827)
    I realize that Microsoft no more than IBM can afford to be seen as an easy mark by patent litigators, but in fighting this battle they are developing techniques which would certainly be used to defend Linux from Microsoft patent lawsuits. I can't believe it is a right hand/left hand issue either: Gates and Ballmer must know what is going on.

    Puzzling.

    sPh
    • by Anonymous Coward
      When has microsoft ever filed patent lawsuits?

      What makes you think (besides slashdot groupthink) that filing patent lawsuits is any part of their business strategy?
  • by xjimhb ( 234034 ) on Wednesday August 18, 2004 @10:37PM (#10008858) Homepage
    This story reminds me of the classic definition of "mixed Emotions" ... watching your mother-in-law drive off a cliff in your new Cadillac!
  • by Matt Perry ( 793115 ) <perry.matt54@ya[ ].com ['hoo' in gap]> on Wednesday August 18, 2004 @10:37PM (#10008860)
    If Microsoft wins this I'd really like to see them sue the USPTO to recover their legal fees. Until the USPTO is held accountable for granting patents on work that is either obvious or has prior art, they won't make any changes.
    • You might be right. But the thought of more lawyers making fortunes because of stupidity nauseates me.

      Even if it worked it would take ten years to get the USPTO changed. How much more damage would they do in that time?
    • If Microsoft wins this I'd really like to see them sue the USPTO to recover their legal fees. Until the USPTO is held accountable for granting patents on work that is either obvious or has prior art, they won't make any changes.

      Sadly, you cannot sue the federal government unless granted special dispensation to do so....such dispensation is available only from the federal government itself. strange but true.

  • here's hoping... (Score:5, Interesting)

    by the-build-chicken ( 644253 ) on Wednesday August 18, 2004 @10:43PM (#10008884)


    Microsoft: This patent is invalid.
    UC: No it's not.
    Patent Office: We agree with microsoft, it is invalid.


    UC: They said our patent's invalid, fix it.
    Microsoft: It is invalid.
    Board of Patent Appeals: We agree with microsoft, it is invalid.


    UC: They said our patent's invalid, fix it.
    Microsoft: It is invalid.
    Federal Circuit Court of Appeals: We agree with microsoft, it is invalid. Further more, it seems the USPTO really needs an overhaul in regards to software patenting to stop this happening again. I recomend an inquiry into USPTO and software patents.


    Microsoft: doh :(
  • by Trepidity ( 597 ) <delirium-slashdot@@@hackish...org> on Wednesday August 18, 2004 @11:26PM (#10009080)
    "Microsoft and its W3C allies"...
  • by account_deleted ( 4530225 ) on Wednesday August 18, 2004 @11:39PM (#10009134)
    Comment removed based on user account deletion

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