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W3C Requests Eolas Patent Re-Examination 342

x0n writes "Verbatim from W3: Acting on the advice of the W3C HTML Patent Advisory Group, W3C has presented the United States Patent and Trademark Office with prior art establishing that US Patent No. 5,838,906 (the '906 patent) is invalid. W3C Director Tim Berners-Lee has written an unprecedented request to U.S. Under Secretary of Commerce for Intellectual Property James E. Rogan to take action to remove the patent to allow operation of the Web. Read the briefing." techsoldaten adds a link to this New York Times story on the move, and bgalbs points out the W3C's detailed filing describing prior art provided to the USPTO Director's office, "along with a letter from Tim Berners-Lee asking that the so-called Eolas patent be revoked," writing "Here's hoping it does some good; between this and the Lotus Notes prior art, perhaps there's hope this will all go away."
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W3C Requests Eolas Patent Re-Examination

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  • by nberardi ( 199555 ) * on Wednesday October 29, 2003 @11:05AM (#7338234) Homepage
    When you think Microsoft is evil and there is nobody lower, you look at Eols to find that they even sunk below Microsoft. Can't Microsoft just buy Eols and fire all their employees and have this nightmare be over with.
    • How is Eolas evil? (Score:5, Insightful)

      by TheConfusedOne ( 442158 ) <the.confused.one ... m ['il.' in gap]> on Wednesday October 29, 2003 @11:15AM (#7338307) Journal
      While the patent in question is questionable at best, how is Eolas evil? They filed for and were given a patent. They have now successfully defended that patent against an infringer.

      The fact that said infringer is huge and has decided to unilaterally shaft the Web in order to avoid paying licensing fees has nothing to do with the inherent goodness or evilness of Eolas.

      BTW, Eolas is privately owned with only one employee. MS can't buy it unless Eolas agrees to being bought. Also, if MS were to buy Eolas you think they'd just suddenly go and license that patent to everyone out of the goodness of their heart?
      • by Anonymous Coward
        Man, you hit the nail on the head.

        What? a patent is valid unless it's claimed technology experiences widespread adoption?

        That patent is ok because no-one infringes it but this patent is evil because every one uses it so that they might have to readjust or pay licenses.

        This other patent was good until everyone implemented the technology, now its bad.

        You would think that anyone with two last names would be smart enough to realize this simple concept:

        The PTO by law is not supposed to give rats deewiddle a
    • by bigjocker ( 113512 ) * on Wednesday October 29, 2003 @11:20AM (#7338351) Homepage
      Microsoft has already tried to settle out of court, but Eolas' goal is to destroy IE.

      When you think Microsoft is evil and there is nobody lower, you look at Eols to find that they even sunk below Microsoft. Can't Microsoft just buy Eols and fire all their employees and have this nightmare be over with.

      Also, Eolas has only one employee, the president and CEO who's leading the suit. It's a one man operation.

      Plus: The worst case scenario would be Eolas being bought by Microsoft because the patent would live on in the hands of Microsoft. The best thing can happen is the small fish biting the big one, even if we think is unfair, but for once the big corporations need to be hit by these stupid patents for the system (read: the people that makes the decisions) to move.

      This is a Good Thing, a big player is being threatened by the stupid patent system, so there's hope now for changes to be made.

      The sad part is all those small players that have been fscked by the system; the decision makers only listen to the big fish.
      • by John Miles ( 108215 ) * on Wednesday October 29, 2003 @11:23AM (#7338379) Homepage Journal
        Plus: The worst case scenario would be Eolas being bought by Microsoft because the patent would live on in the hands of Microsoft

        How is this a worst-case scenario?

        When's the last time Microsoft proactively enforced a broad-ranging patent to the detriment of an entire industry?
        • Microsoft hasn't needed to use patent law to defend their monopoly, but I bet they will if open source really starts to worry them. They are certainly using IP FUD to scare people away from using open source.

          And before you fault me for suggesting Microsoft would do this without any evidence; I am just using the same type of argument as the Microsoft apologists who say that any company would act like Microsoft, so any legal sanctions against Microsoft just rewards loser companies that couldn't compete. Ei
        • If you keep an eye on their patent portfolio, you'll find that while they haven't used it, they have a lot in there. If their market share starts goign down significantly, do you expect them to not use it? A while ago there were articles about how they patented the Windows authentication process pretty much specifically so they could go after Samba if they need/want to.
        • I don't know, why don't you ask the author of Virtualdub?
  • by JUSTONEMORELATTE ( 584508 ) on Wednesday October 29, 2003 @11:07AM (#7338241) Homepage
    In case you're saying "Eolas? Wasn't he in Lord of the Rings or something?"
    Here's a little background reading [slashdot.org].

    --
  • This is absurd (Score:5, Insightful)

    by Arker ( 91948 ) on Wednesday October 29, 2003 @11:07AM (#7338243) Homepage

    There should be no need for prior art. The very idea that you can patent the idea of putting something that used to appear in a new window embedded in the original window instead is just absurd beyond belief. A wonderful example of what nonsense the entire idea of 'intellectual property' is.

    • There should be no need for prior art. The very idea that you can have a site where the same wankers post about how much linux rulez and BSD is dead and l33t k1dd13s sux0rz and then mod themselves 'insightful' or 'funny' and then pat themselves on the back on how great that mod was with a meta-mod is just absurd beyond belief. A wonderful example of what nonsense the entire idea of 'world wide web' is. </sarcasm>

      One bad idea doesn't mean all ideas are bad.

    • Re:This is absurd (Score:3, Informative)

      by saddino ( 183491 )
      The very idea that you can patent the idea of putting something that used to appear in a new window embedded in the original window instead is just absurd beyond belief.

      You're right -- that notion is absurd -- but if you'd actually bother to read the patent [uspto.gov], you'd notice that your gross oversimplification isn't anywhere close to what Eolas actually claims.

      Valid roof of prior art is the only way to defeat this patent.
      • Re:This is absurd (Score:4, Insightful)

        by Arker ( 91948 ) on Wednesday October 29, 2003 @12:02PM (#7338803) Homepage

        You're right -- that notion is absurd -- but if you'd actually bother to read the
        patent [uspto.gov], you'd notice that your gross oversimplification isn't anywhere close to what Eolas actually claims.

        I've read it. I stand by my characterisation. I encourage anyone that's wondering to read it themselves, and preserved the link in the quoted text above to encourage just that. It covers what I said, along with a few extremely general and obvious ideas such as letting the client and the server talk to each other as the content is displayed. If you think there is something more there please feel free to quote the part in question.

    • Re:This is absurd (Score:2, Interesting)

      by kansas1051 ( 720008 )
      I will certainly not contend that the patent in question should not have been granted, but your argument is equally as absurd as the Eolas patent. I remember (from research) the Examiners to U.S. Patent 821,393 said almost the exact thing in regard to its claims, and the '393 patent is probably the most important US patent ever issued. Not all intellectual property is the Eolas flavor, and only someone who is entirely ignorant on the subject would contend as much. The USPTO examiners do a difficult job a
      • Not all intellectual property is the Eolas flavor, and only someone who is entirely ignorant on the subject would contend as much.

        And I didn't say anything of the sort. I said it's a wonderful example. Do you know what an example is? It's a single datapoint that can be used to illustrate a broader point. It's not a syllogism or any other sort of proof, it's an example.

      • Correct 99% of the time my ass. Nobody is right 99% of the time. Even Einstein was wrong, look at all the flaws found in his theories every day. If they're correct 99% of the time, then I dare you to show us some statistics AND their sources backing this claim up.
    • Didn't they do that in Unix with virtual terminals? Things that woudl appear on one terminal could be redirected to appear in the current terminal...
  • Comment removed based on user account deletion
    • Re:Hmm. (Score:3, Insightful)

      by Zathrus ( 232140 )
      What would happen if the patent did get revoked? Would MS get their money back?

      What, you think that MS just wrote out a check for half a billion dollars as they walked out of the court room?

      The ruling has been appealed. If the patent was revoked then the appellate court would simply reverse the ruling on the basis of the patent being invalid and MS wouldn't have to cough up a nickel (except to their lawyers).
  • by an_mo ( 175299 ) on Wednesday October 29, 2003 @11:08AM (#7338256) Journal
    from the nyt:
    In the trial, Microsoft did claim that there was prior art that undermined the claims of the Eolas patent. But in its filing, the Web consortium offers different examples including pre-Internet era software like Write, a word-processing program included with the Windows 3.1 operating system, which included software for summoning and displaying other programs. That, the standards group said, is the same basic function and idea described in the Eolas patent.


    It is incredible that MS would forget to use prior art of their own in their own lawsuit!
    • Warning: Conspiracy Theory Below

      That is assuming MS wanted to win the case. They could have easily won the case if they wanted. However, by loosing the case, they simply pave the way for more MS insurance on the browser market. Suddenly, commercial vendors releasing browsers must comply. This means that when a user switches, they will blame the browser rather than MS, which will provide a MS-only solution to the problem.

      The other issue is that the next iteration of Windows wouldn't use plugins but wou
    • Actually, the judge prevented Microsoft from presenting evidence of the prior-art, judging that it wasn't "relevent". Microsoft is appealing the ruling based on this information.
  • Prior art (Score:5, Interesting)

    by Sir Haxa1ot ( 715348 ) on Wednesday October 29, 2003 @11:11AM (#7338275) Homepage Journal
    Some sources tell me that Microsoft will appeal Eolas case by bringing up Perry Pei-Yuan Wei [berkeley.edu], a Berkeley student that in 1991 created a browser called Viola capable of rendering the built-in plugged-in applications, later to be knows as applets.

    Here's an example [berkeley.edu] of the chess app being used in Viola in 1991, which questions Eolas patent.
    • I don't know the exact history, but the patent in question was derived from work at Berkeley around the same time - so it may have come from the same development work. Thus it is not prior art - it is *the* art. Remember that Eolas' patent is really an exclusive license of a Berkeley patent (Eolas' founder is an ex-Berkeley professor).
  • >Eolas have no problems with open source and W3C compliant commercial browsers.

    For now... What happens when a few years down the road, the guy running Eolas decides he wants a new jet or yacht? Maybe he just wants to see how much he can get his net worth up to. Who knows what he's planning or thinking.

    He's already shown his stance on IP patents, I have no doubts that suing other browser companies is not that far off, regardless of what he says.
  • by arvindn ( 542080 ) on Wednesday October 29, 2003 @11:13AM (#7338286) Homepage Journal
    Is there an official forum through which we can show our support for W3C's action? Just like "if you don't believe in free speech for you enemies, you don't believe in it at all", the real test of whether we believe that software patents shouldn't exist is when it affects not us but those whom we despise (in this case MS).

    For example, the mozilla foundation in its official statement [mozilla.org] on the issue says nothing to condemn the Eolas patent, but instead has some content free statements like "The Eolas matter highlights the degree to which web browser software is critical to the user experience of the web.". I don't think this is the right thing to do. Getting all up in arms about say the gif patent and pretending you didn't notice when MS is hit is not good. So let us speak with one voice, and show our support for W3C.

  • It's funny how... (Score:3, Insightful)

    by mengel ( 13619 ) <mengel@noSpAM.users.sourceforge.net> on Wednesday October 29, 2003 @11:17AM (#7338323) Homepage Journal
    The readership is confused.
    Microsoft bad.
    Software patents bad.
    Poetic Justice?!?

    Remember, it could just as easily have been the Mozilla or Konquerer developers being sued, (legally speaking), in which case the folks in this forum would be all up in arms about it and supporting the W3C.

    • Microsoft bad - probably almost everyone on Slashdot will agree to that.

      Software patents bad - that's a mixed bag, but yes, the people who think they're bad speak up much more. Pretty much everyone agrees that the US Patent Office issues way too many software patents that it shouldn't - either because they're obvious, or because there's prior art. A lot of people here seem to think that automatically makes all patents bad. There's also the crowd that thinks that because something is obvious now, of course
      • I'm all for any means of hurting them.

        I'd much prefer means that are reasonable, and don't hurt everyone else, as well. For example, nuking Redmond to get rid of Microsoft is a bad way to solve the problem. Similarly a patent that makes every web browser much less useful just to hurt Microsoft loses.

        Personally, I think having handed out patents for arbitrarily programmable computing devices, handing out more patents for using those devices with a particular set of programming is silly. It's just lik

    • I think it can be understood this way: just because I don't we don't liek north korea doesn't mean we will nuke the whole owrld just to get rid of them. Same here. Just becuase IE is bad doesn't mean we will nuke the whole web to get rid of it.
  • I almost never click the "Patent Pending" Slashdot links, because they are almost always depressing. Nice to see a change of pace!

    I really hope this wins. I get so sick and tired of people filing abusive patents to strangle the whole world just so they can make a quick buck. My company is currently fighting something similar, so it's a pet peeve of mine.

    If W3C wins this, they should keep the momentum going and go after Jeff Bezos. He's a prime example of this kind of abuse.

    Weaselmancer

  • Patent thoughts (Score:5, Interesting)

    by Empiric ( 675968 ) * on Wednesday October 29, 2003 @11:27AM (#7338423)
    Glad to hear Tim Berners-Lee is weighing in on this. Certainly, his views should have some impact. I would be seriously annoyed if I were in his position; it's absurd to allow companies just to wait for thousands of inventors and developers to go through the quasi-Darwinian process of technological innovation (often without compensation), see which techniques evolve as best-practices, and then hijack them.

    Supposedly, the underlying justification for patents is to encourage investment in research by protecting inventions from direct competition for a limited time. In that context, there should be a requirement for a strong correlation between the time required to create an "invention", and the time frame of the protection. If something takes 5 years of R&D to create, 7 years of patent protection seems reasonable. If it takes 5 minutes, that time frame certainly is not.

    Why not, as part of the patent process, have a peer review of the application, with a best-guess among the reviewers as to how long it would take to create the invention or (more approximately) generate the underlying insight, given a person working in that field? Multiply that time by a generosity factor of X, and limit the patent's applicability to that duration, assuming it passes all other prior art tests. It would seem that this would much more closely represent the intent of patent law, as well as eliminating irrational impediments to technological progress.
  • by 3seas ( 184403 ) on Wednesday October 29, 2003 @11:33AM (#7338485) Homepage Journal
    I believe there is a general assumption that MS really wanted to win the case.

    What should be understood is the advantages MS would gain in losing.

    Teh fact that prior art itself that was not presented by MS but of MS products, should be plenty reason to suspect MS didn't want to win the case, but only create the illusion.

    Perhpas the question to ask now is how is MS using other companies to do their bidding, like SCO..
    • The judge presiding over the case denied Microsoft the ability to argue the validity of the patent. They didn't "forget" to bring it up because they wanted to lose, the "Judge" wouldn't allow them to bring it up.
  • OS/2 opened a hole in the video display window that another program could display into. One of the external programs OS/2 could run was windows 3.11

    There is zero difference between doing this and a web browser or any other program simply assigning a range of pixels to hold an image created by an external program.

    It is totally absurd that the USPTO should assign a patent for perfectly obvious technology that was in wide spread use by the patent officer himself!

    So WTF is going on in the USPTO?

    Bloody idjo
    • It is entirely different. Specifying a new block of memory for direct video access bears no resemblance whatsoever to embedding a plugin. Even if it did, the use of an HTML tag is specifically mentioned...
    • So WTF is going on in the USPTO?

      According to the USPTO website [uspto.gov]:

      James E. Rogan was sworn in as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO) on December 7, 2001. Secretary Don Evans presided over the ceremony. Judge Rogan becomes the 55th head of the agency. He was nominated by President George W. Bush on May 25, 2001, and confirmed by the United States Senate on November 30, 2001.
      ...
      Judge Rogan served two terms in the House

      • What a bunch of FUD.

        This patent was filed years ago.

        There were plenty of stupid (1-click purchasing) patents granted in the previous administration too.
        Are you suggesting that they too had a political agenda for granting THOSE patents?

        I didn't think so.
  • by Marrow ( 195242 ) on Wednesday October 29, 2003 @11:33AM (#7338487)
    The patent office cost the companies of this country an enormous amount of money that they had to spend on researching this problem. The patent office was responsible for maintaining the validity of the Patent information. The Patent Office should have to pay the companies that endured an unecessary loss to their business as a result of the poor work done by the Patent Office when it originally issued the Patent.

    If the Patent Office had to Pay For Their Mistakes, they might be less likely to make the same mistakes over and over again.
    • Doubtful. (Score:3, Insightful)

      by PhxBlue ( 562201 )

      If the Patent Office had to Pay For Their Mistakes, they might be less likely to make the same mistakes over and over again.

      That presumes the Patent Office would feel a greater sense of accountability for your money than they do for their work. Since they obviously don't give half a damn about their work, why would they care about how they spend your money?

      What is the benefit of keeping the patent system versus the benefit of getting rid of it? Maybe we need to wipe our hands clean of the whole conc

  • Just curious ... (Score:3, Interesting)

    by DaneelGiskard ( 222145 ) on Wednesday October 29, 2003 @11:34AM (#7338505) Homepage
    Does anyone know of any (software) patents which have been nullified due to prior art?
  • A federal jury ruled against Microsoft in August and awarded $521 million to a former University of California researcher who holds the patent the Web consortium now wants revoked.

    I thought most "work done for hire" belonged to the employer, not the employee. How much of this $521 million went to the University of California?

    (Yes, I know that a lot of universities allow researchers & faculty to retain some rights to "inventions" & such, but the university is gonna skim a thick layer of cream o

  • Is there a global database where 'ideas' can be entered in public view that would serve as prior art for any future patents (think imdb or the like)?

  • this could be the end of stupid software patents in the US. Go W3C!
  • FTC floats patent changes

    Released yesterday from the the FTC [ftc.gov]

    Comments from law.com [law.com]

    Check this quote out:
    "There is a little underappreciation by the FTC for the applications that don't get allowed," he said, adding that more than 80 percent of business method patents are rejected.

    Sounds great but 20% do make it..
  • by fanatic ( 86657 ) on Wednesday October 29, 2003 @12:01PM (#7338793)
    Me enemy's enemy's friend's enemy's friend is .. oh shit, I give up.
  • by dpille ( 547949 ) on Wednesday October 29, 2003 @12:13PM (#7338906)
    W3C seems to have an odd inconsistency in its filing:

    Raggett I and II specifically teach those of ordinary skill in the art to modify a prior art browser, such as the Mosaic browser, to incorporate the allegedly new features of claims 1-3 and 6-8, rendering those claims obvious.

    Then it says this about 'ordinary skill in the art':

    The person of ordinary skill in the relevant art to the claimed invention is a software programmer with at least a bachelor's degree in Computer Science, and five years of programming experience in Internet, Web and browser technology, including specific experience with programming in HTML.

    I can't help but think that if the "new" prior art is dated July 1993 and the first NCSA Mosaic is February 1993 (?), there wasn't anybody around with the requisite "5 years' experience" for the invention to have been obvious to, not even by the time the application gets filed in 1994.

    Anyway, I just thought it was strange that they'd make such an effort on this stuff but make that kind of apparent mistake.

  • He already stated that they would licence the technology to Mozilla for free, and that he didn't want to see a browser monoculture.

    The fact that this is being done shows how much clout MS really has - even if you are legally in the right in taking them on, (whether he is morally right is certainly a matter of debate) they can simply get the law changed in their favour. Scary, isn't it?

  • Patent lawyers can be extremely pushy. Eventually they piss off the patent examiner reviewing the patent, and the examiner takes the attitude of, "I'll show him." They approve the patent and decide that when the company loses the patent in court, they'll go after the lawyer for all he/she's worth.

    Kinda funny since a bunch of patent examiners go on to be patent lawyers...
  • The patent office uses 'rules' which are based on case law:

    Rule 101, basically says that the prior art show is exactly what is in the patent in question.

    Rule 102b, basically says that given A and given B it is obvious to combine A and B for reason C. In this case I think they are saying that given the fact that people were talking about the EMBED tag and given the fact that the Mosaic browser was around 'it would be obvious to one skilling the art' to use the EMBED tag in a web browser.

    Rule 103, basical

  • by Qrlx ( 258924 )
    Shouldn't we wait until Microsoft has to pay Eolas billions before questioning the authenticity of this patent???

A committee takes root and grows, it flowers, wilts and dies, scattering the seed from which other committees will bloom. -- Parkinson

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