USPTO Reexam Finds $521M Eolas Patent Valid 220
theodp writes "As predicted earlier on Slashdot, looks like the W3C goofed by shutting out the public and asking the Patent Office to base its reexamination of the Eolas Web Plug-In Patent solely on prior art promoted by Microsoft. The USPTO has reaffirmed the validity of the $521M patent, rejecting the W3C's prior art as deficient for not demonstrating the capability of ongoing real-time manipulation and control by the user. The USPTO also considered but rejected the prior art of the Viola Browser, which formed the basis for Microsoft's appellate argument. Ironically, Eolas' defense was bolstered by the arguments of its expert witness, 2005 EFF Pioneer Award Winner Ed Felten."
Is this still an issue? (Score:3, Interesting)
Re:Is this still an issue? (Score:5, Informative)
Re:Is this still an issue? (Score:5, Insightful)
Maybe, in a few rare cases, patents have spurred development of new, truly innovative, technologies. But, to quote Lyndon Johnson, "You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered." I would feel vaguely sorry for the little and truly innovative companies if we took away patents, but not sorry enough.
Re:Is this still an issue? (Score:2)
As you say, this is rather silly in some cases. That's one of the problems with patents.
Re:Is this still an issue? (Score:3, Insightful)
What makes you think they developed their solutions independently? Netscape's plugin architecture was very popular by the time Internet Explorer had ActiveX, and Konqueror duplicated Netscape's interface exactly.
Re:Is this still an issue? (Score:2)
Campaign website: NO SOFTWARE PATENTS (Score:3, Insightful)
http://www.nosoftwarepatents.com/en/m/intro/index. html [nosoftwarepatents.com]
I urge everyone to mail this link to every co-worker and IT-knowledgeable person you know. First, all the geeks must unite, then the knowledge will spread from the knowledgeable to the ignorant.
A link to
It is n
European awards for NoSoftwarePatents.com (Score:3, Informative)
Last Monday, the FFII [ffii.org] and NoSoftwarePatents.com [nosoftwarepatents.com] jointly won the CNET award for Outstanding Contribution to Software Development [zdnet.co.uk] in Europe.
This award for the anti software patents movement is both very welcome and very well deserved. When the European Parliament rejected software patents on July 6, it was a great victory. Not only for the open source movement, but for all European businesses that use or produce software. It is nice to see this recognized in this manner.
One To Win
We als
Re:Disturbing (Score:2)
wtf? (Score:3, Insightful)
Payday (Score:5, Insightful)
Still, this is a broad patent and will have serious implications if those 100 start seeing dollar signs. Microsoft could be target #1 and while I've heard rumors of Eolas vowing not to go after FOSS infringers -- like Mozilla -- all bets are off once the greed fever takes hold.
I wonder if AOL/Time-Warner is a potential target for all their infringing years as owners of Netscape/Mozilla. They have some cash laying around that I'm sure some patent lawyers would like to "liberate".
-Charles
Math error (Score:5, Insightful)
That assumes they all have an equal number of shares. I think one guy has a majority, a couple of others have good-sized chunks, and everyone else was optioned in in lieu of salary. There's probably a bank or two involved, and the lawyers will get half anyway.
Re:Payday (Score:2)
I wonder if that promise is mostly based on the fact that Mozilla/FOSS doesn't have billions in the bank, unlike MS, rather than a love/respect for FOSS. Deep pockets make for more tempting targets after all.
Eolas and Free Software (Score:3, Informative)
http://wiki.tcl.tk/1935 [wiki.tcl.tk]
http://wiki.tcl.tk/212 [wiki.tcl.tk]
So... what can we say? Software patents are still not our friends, but seeing "the little guy" beat up on Microsoft is certainly better than, say, Microsoft holding this pattent and beating up on a little guy.
Re:Eolas and Free Software (Score:2)
If this patent holds up past the Supreme Court, then Microsoft can BUY any little guy (everyone has a price, and they've got $50,000,000,000 sitting around). Then they'll beat up on all the medium-size guys with it, including Apple, Sun, Linux, AOL, IBM, etc. Hurray!
Is the THE plugin patent or only one of many? (Score:2)
The title of the patent (from the uspto website) is:
"DISTRIBUTED HYPERMEDIA METHOD FOR AUTOMATICALLY INVOKING EXTERNAL APPLICATION PROVIDING INTERACTION AND DISPLAY OF EMBEDDED OBJECTS WITHIN A HYPERMEDIA DOCUMENT"
If this covers only one possible method of making plugins, that's one thing. FOSS browsers could simply find a different way of doing it. But if it covers all methods of making a plugin to a web browser, or of embedding apps into a browser, then it could be a problem. The latter one is wha
Eolas isn't what scares me (Score:5, Insightful)
Even if the Eolas claim is valid, it's pretty sad that the government can let somebody sit on something like this for years while other people innovate, and then dive in and claim they own it. This news illustrates the need to place a time limit on "sleeper" patent claims.
Time limit on "sleeper" patent claims (Score:3, Informative)
http://www.groklaw.net/article.php?story=20050913
It was, however, a rather extreme case, so I am not sure if the same reasoning would work in Eolas vs. Microsoft
Key question for USPTO officers (Score:5, Insightful)
A. "No."
In fact, no software developer of any standing would need the information allegedly protected by the patent, because it is 100% obvious. And if you don't need the information in a patent, either directly or indirectly, then clearly the patent does not contribute the technical novelty which is allegedly being infringed. It has not offered the claimed item of value to the commonweal through its publication.
Given the above, nothing else in this case is relevant. Regardless of the form of words on the application, there can be no rational claim of infringement of a protected invention here, because the likelihood that the patent played any part whatsoever in the development of the allegedly infringing products is zero.
Re:Eolas isn't what scares me (Score:2)
And this is what's seriously killing innovation. Before I can do anything, I have to hire someone to search the hundreds of thousands of active patents to see if someone else has a claim on it. If the specs change, the sea
Re:Payday (Score:5, Informative)
Re:Payday (Score:2)
Usually for lawsuits like that they go after the money. Mozilla, Opera, and the also rans have precious little money, not enough to sue over. Unless one of them does something to enrage Eolas, I'd imagine MS will be the only targe
Re:Payday (Score:2)
Re:Payday (Score:3, Insightful)
Yay, the Patent Office just created a baby SCO!
Seriously though, there are two things I don't understand about IP patents (actually there are many things am quite ignorant about regarding this subject):
1. Is there a burden of proof on one side or the other in a patent dispute to show that the alleged infringer copied the idea instead of developing it independently?
Re:Payday (Score:2)
In the case of patents it doesn't matter. If you are coder with a decent amount of experience then there is a 100% probability that you have violated somebodies patent. It doesn't matter matter if you came up with it independently.
Re:Payday (Score:2, Insightful)
Re:Payday (Score:2)
See "Lemuelson" for the classic example of this kind of parasitic indulgence.
Re:Payday (Score:4, Interesting)
Firstly, if the inventor (that is the person(s) identified as the inventors in the patent) copied the invention from anyone else (the accured infringer or a third party) the patent claims are invalid under 35 USC 102(f) [cornell.edu]. Also, if the the invention was patented or described in a printed publication, or in public use or one sale in the US more than one year prior to the effective filing date of the patent application it is similarly invalid.
2) The patent, from the day it is issued, can be applied against the acts making, using, and selling of the invention, regardless of when the accused infringer started those acts; liability for infringing, however, can only be assessed for those acts actually occuring on or after the issued date; previous acts don't count. Also, regarding liability, acts more than 6 years prior to filing the infringement case don't count. This, of course, applies only in cases brought relatively late in the life of the patent.
Additionally, and most important in the case of newly issued patents, the Court can enjoin the infringer from performing further such acts as part of the remedies granted the patentee. This is how, other than the costly assessment of damages, that the patentee can shut down the infringer's actions.
There is an interesting doctrine I vaguely recall that might be relevant in some circumstances of timing to software patents, that accused infringers might be able to escape liability if they were practicing a method covered by a method claim in a patent; this doctrine is called a "shop right". While searching title 35 (the patent law) I stumbled on 35 USC 273 [cornell.edu] which on a quick glance, seems to express that long held judicial doctrine. Traditionally, this protected a person using a secret method to make something from being shut down due to another getting a patatent on the method, if the the infringer came up with the method prior to the inventor of the patent. Perhaps an IP lawyer can comment on that.
Where is Eolas' product? (Score:2)
So where is Eolas' product, which this patent is supposed to protect?
Of course, every man and his dog will point out that the above does not reflect how patents are used in today's world, at least in the US. Well bully for you, that's the hub of the problem, and Eolas is just a symptom.
W3C should have k
I forget (Score:3, Funny)
Congress is too busy worrying about baseball players taking steroids to actually fix the system.
That's because patents don't affect.. (Score:5, Insightful)
Re:I forget (Score:5, Informative)
Are you serious???? Have you not heard of the Patent Reform Act of 2005, H.R. 2795 ?
http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.
http://www.ipo.org/template.cfm?Section=Patent_Re
This is making major MAJOR changes to patent law (prior use rights, first to file instead of first to invent, creation of public opposition proceedings, publication of all patents, etc, etc, etc.) in 10 or 12 MAJOR areas of patent law.
And this thing is going to pass. It has wide congressional bipartisan support and the support of the all the major players. And it is a good thing for consumers.
Yikes, get your facts straight.
Re:I forget (Score:4, Insightful)
Forget prior art. Did they file before you? That's the only thing you have to worry about.
I don't call that better. Now granted, I'm sure many provisions do benefit consumers, and innovation, but this whole first to file thing is just trying to get rid of red-tape that they have to deal with finding prior art. Now, they just have to look through their records and see if you're the first one to file for it. If you are, congratulations, otherwise, too bad, we'll put you in contact with who you need to to speak to about getting a license to use the technology that you independently developed before them.
Re:I forget (Score:2)
1:They should be on a first to implement basis (real world use of the concept)
2: They should last for 3-5 years at max (which should be long enough for a company to make money in the market)
3: they must be specific to a particular process or concept
4: if patents are not defended as soon as it is reasonably possible to know infringement occurred , then they are lost and enter the public domain
Re:I forget (Score:2)
Which should help most smaller inventors .
There would need to be provisions to help the smaller inventors whistle still avoiding submarine patents
Re:I forget (Score:5, Interesting)
First to file is much better than first to invent. In the case you mention that you invent someting first but someone else files first (both arrived at the same invention independently), your invention would make their invention INVALID as it would be perfectly valid prior art against their invention.
There's a few complications as regards the way certain countries and regions handle situations like this, but they system, isn't designed to punish you for being slow to file.
Here in Europe we have situations like this quite frequently where someone will oppose a granted patent using as evidence their own (or other) internal documents (or even product brochures). If it can be shown they genuinely have a point, then the patent could be invalidated or, in rare cases they could get to share the patent.
First to invent requires HUGE amounts of perfect paperwork at all times and is open to all sorts of fraud.
Plus, the US is the only major country that doesn't have first-to-file as a basic concept. In fact, that plus opposition boards etc - they are simply copying the European patent office.
Re:I forget (Score:3, Informative)
The prior art must be published in order to count for opposing a patent. So the brochures distributed to potential customers would be useful as prior art, but internal documents will not help.
Exception in Germany: If you can show you used the patented invention before it was filed (but have not published it), you can ke
Re:I forget (Score:2)
First to invent means that little old me can keep the rights to what I invent. Say I invent something, but I have no money and can't afford a patent lawyer to file for me (and I'm not going to give it to Pat
You're just wrong (Score:3, Insightful)
But you have to prove your invention was prior art by showing that you publicised it. "Prior art", under first-to-invent, means anything that existed before your invention. Under first-to-file, though, it's only what the patentee could have known about.
Re:I forget (Score:2)
first-to-file (Score:3, Interesting)
If you come up with an idea independently, there is a simple way of protecting yourself from patent claims against you: publish your idea. Making your project open source probably helps, but it is probably also a good idea to write up an explanation and submit it to an archive server or even get it published in a journal.
Patent law is pr
Re:I forget (Score:3, Insightful)
Re:I forget (Score:2)
I found a solution: I just patented One-Click Steroid Injections.
Don't we me.... (Score:3, Insightful)
But in a world with software patents, I am all for abusive companies to get a serving of their own medicine.
Oh yes (Score:5, Insightful)
But in all seriousness, this is both a good and bad thing.
It's a bad thing (in the eyes of most
It's a good thing (again, in the eyes of
Re:Oh yes (Score:5, Insightful)
Re:Oh yes (Score:2)
A failed re-exam is bad for everyone (Score:3, Insightful)
Well maybe in principle, but none of the schmoes will be able to deploy as effectively again the arguments based on the art cited in the failed re-exam proceeding.
There is always some tendency for a court to take the view that the questions handled in the re-exam were properly dealt with, and that the statutory presumption of validity of the patent has been strengthened.
That pushes future dispu
Re:Oh yes (Score:2)
Ah yes. Society has always had a love of stories of the little guy (thief) sticking it to the big guy (corporation). And, OK, so I mean, technically the "little guy" here is sticking it to a wide variety of "guys", ranging from big guys to middle-sized guys all the way down to open source developers living in cardboard boxes. But hey, in the process of burning down the internet they caused some fire damage to on
Re:Oh yes (Score:3, Insightful)
Re:Oh yes (Score:2)
I was going to say that if MS was hurt enough they might lobby to change the laws but I just realized they would have to lose hundreds of lawsuits before they even noticed. Bill Gates will look under the cushions of his couch and find enough money to pay
Slashdot EZ Post TM (Score:5, Funny)
[ ] Another: [ ] Dupe [ ] Slashvertisment [X] WTF [ ] $editor is a dork
[X] Frist psot [ ] link to GNAA [ ] Link to goatse [ ] $random_drivel
[X] I Haven't RTFA, but... $random_opinionated_comment
[ ] Slashdotted already!. I bet their server runs on $topic_item too
[ ] Soul_sucking registration required
[ ] Mod Parent [ ] up [ ] Down
[X] Fsck: [ ] SCO [X] Micro$oft [ ] DMCA [ ] DRM [ ] MPAA [ ] RIAA [ ] Google [ ] Bush [X] You all
[ ] I for one welcome our new $topic_item overlords
[ ] Imagine a beowulf cluster of those
[X] In Soviet Russia, $topic_item owns you!
[ ] Meh!
[ ] Netcraft confirms $topic_item is: [ ] dead [ ] dying
[ ] But have the inventors thought of what will happen if $random_amateur_insight
[X] Once again the USA is clamping down on my [X] Amendment rights.
[ ] You insensitive clod
[ ] But people who download music from P2P networks are more likely to buy the album
[ ] Cue DVD Jon-type crack in 3..2..1
[ ] Torrent, anyone?
[ ] Here's a link to a patch: $random_linux_distro_url
[X] Profit!!
[X] Still no cure for cancer
Re:Slashdot EZ Post TM (Score:3, Insightful)
Re:Slashdot EZ Post TM (Score:2)
L3K
Re:Slashdot EZ Post TM (Score:2)
And my response is copied from here [slashdot.org]
Which responds to the same sort of deal.
Re:Slashdot EZ Post TM (Score:2, Funny)
[X] Frist psot [ ] Link to goatse
You must be a real joy on your honeymoon.
Re:Lets abstract it a level... (Score:2)
As predicted earlier on Slashdot, (Score:3, Funny)
... The oracle says (Score:2)
*shake*shake*shake*shake*
Re:As predicted earlier on Slashdot, (Score:2)
Re:As predicted earlier on Slashdot, (Score:5, Funny)
I cannot provide an exact date, but the following events will foretell the coming of a woman in your life:
Microsoft adds support for the OpenDocument format.
SCO realizes the error in their ways and open sources Unix.
A full year will pass here on Slashdot without a single dupe.
Duke Nukem Forever will be released.
As a final blessing, I foresee that you will meet this woman though the relationship services provided by Googlezon's EPIC system.
Re:As predicted earlier on Slashdot, (Score:2)
Money Can't Buy You Love... (Score:2, Funny)
Hey Eolas! (Score:5, Funny)
Signed,
Frodo and Gimli
Re:Hey Eolas! (Score:2)
Not Ironic (Score:4, Informative)
Unless I'm missing something, this isn't ironic.
Irony is a gulf between what you would expect and what happened. This isn't; in fact, it's EXACTLY WHAT YOU WOULD EXPECT.
You would EXPECT that Eolas's defense would be bolstered by arguments of its witnesses, that's why they are Eolas's witnesses.
(Now, you may find it ironic that Ed Felten was testifying for them, but that's not what the sentence says.)
WOW! (Score:2)
Oh wait, no it isn't.
Prior art: HyperTIES hypermedia browser (Score:3, Interesting)
HyperTIES [umd.edu] is an early hypermedia browser developed under the direction of Dr. Ben Shneiderman at the University of Maryland Human Computer Interaction Lab.
HyperTIES supported browsing interactive hypermedia including formatted text and scalable PostScript graphics, including interactive software components like applets, pie menus, embedded graphical menus, text and graphics editors, etc, written in the NeWS object oriented dialect of PostScript.
The HyperTIES hypermedia browser was also integrated with an authoring tool, based on the Unipress Emacs text editor, which could remotely control the browser (so Emacs could navigate the browser and display the content you're editing), and the browser could remotely control Emacs (so you could create hypermedia interfaces with text links and graphical menus that drove Emacs).
Illustration: HyperTIES Browser (right) and UniPress Emacs Multi Window Text Editor Authoring Tool (left), tab windows and pie menus, running under the NeWS Window System. [donhopkins.com]
Illustration: HyperTIES Browser NeWS Client/Server Software Architecture. [donhopkins.com]
Paper: Designing to Facilitate Browsing: A Look Back at the Hyperties Workstation Browser [donhopkins.com]
By Ben Shneiderman, Catherine Plaisant, Rodrigo Botafogo, Don Hopkins, William Weiland.
Since browsing hypertext can present a formidable cognitive challenge, user interface design plays a major role in determining acceptability. In the Unix workstation version of Hyperties, a research-oriented prototype, we focussed on design features that facilitate browsing. We first give a general overview of Hyperties and its markup language. Customizable documents can be generated by the conditional text feature that enables dynamic and selective display of text and graphics. In addition we present:
[...] Since storyboards are text files, they can be created and edited in any text editor as well as be manipulated by UNIX facilities (spelling checkers, sort, grep, etc...). On our SUN version Unipress Emacs provides a multiple windows, menus and programming environment to author a database. Graphics tools are launched from Emacs to create or edit the graphic components and target tools are available to mark the shape of each selectable graphic element. The authoring tool checks the links and verifies the syntax of the article markup. It also allows the author to preview the database by easily following links from Emacs buffer to buffer. Author and browser can also be run concurrently for final editing.
[...] Implications of Graphics in Hypertext
Hyperties incorporates graphics while preserving the embedded menu approach used for textonly documents. A displayed page can mix text and graphics while allowing arbitrarily-shaped regions to be designated as targets, which provide links to other articles. The addition of graphics provides significant advantages (14). Information that is structured in the form of charts, graphs, maps, and images may be explored with the same facility as text. But the use of graphics in hypertext requires more work on the part of the author to produce comprehensible documents. There is no simple technique for emphasizing the targets that is acceptable in all cases, and the author
Not happy about this (Score:2)
Sure, I hate -- HATE -- Microsoft with a passion. But the existing patent system will only help them.
Premature panic (Score:4, Insightful)
Words are not what they say they are. (Score:2, Insightful)
does it still matter? (Score:4, Insightful)
That doesn't change the fact, of course, that the patent is stupid and has prior art., it's just that in this case, the incorrect decision may not have a lot of serious consequences.
AJAX? (Score:2)
Re:AJAX? (Score:2)
Re:AJAX? (Score:3, Informative)
Suffice to say, what you describe had masses of prior art (there were many similar examples in other pieces of software such as mail and usenet readers dating waaay back too). Which is why the Eolas
external display or built-in functionality is OK (Score:4, Interesting)
So, invoking external applications that don't embed, or invoking built-in functionality, would seem to be OK. I believe this means invoking a built-in MPEG4 player would be fine, as would be Javascript/SVG animation. Furthermore, both of those do have clear prior art and probably weren't addressed in this lawsuit.
You can read the patent [uspto.gov] yourself.
Re:does it still matter? (Score:2)
Without ActiveX, GMail would not exist, and consequently the current popularity of AJAX would not exist either. You see, on Internet Explorer, XMLHttpRequest is an ActiveX object. You think Google would have launched GMail without Internet Explorer s
the eolas name (Score:3, Funny)
Good news and mostly bad news (Score:5, Insightful)
Good news:
Re:Good news and mostly bad news (Score:2)
For instance, Charlie McGreevy is nominated in the "Commissioner of the year" category, and as far as I remember he's one of the people that have tried hard to push the pro-patent agenda - but I have no idea if any of the other
Re:Good news and mostly bad news (Score:3, Informative)
Let me publish some recommendations here now:
Re:Good news and mostly bad news (Score:2)
Re:Good news and mostly bad news (Score:2)
No, the Eolas patent is a threat specifically to embedded, external appliations, because that's what it covers. That means for "the Internet as we know it", ActiveX, embedded media players, embedded PDF viewers, and embedded Flash players. If all of those go, as well as the ability of companies like Microsoft to fragment the web by creating Windows-specific plug-ins, I think that's go
not worried (Score:3, Interesting)
This is GOOD! (Score:3, Interesting)
My conspiracy theory (Score:2)
Microsoft will simply obtain an exclusive license to the patent locking out all other browsers.
This patent is WAY to broad.. (Score:2)
Hell, it covers HTTP!
The idea of interacting with an object embedded within a hypertext document could cover something as rudimentary as right clicking on an image..
HOW in GODS NAME could the patent office GRANT this short of stuff?
Re:As long as they don't attack Open Source (Score:3, Insightful)
Who's side should I be on? (Score:2, Funny)
The incongruity of Microsoft fighting a patent and a patent holder attacking Microsoft has caused my Slashdot groupthink implant to asplode.
Quick! Someone tell me how I should think!
Re:As long as they don't attack Open Source (Score:2)
Re:As long as they don't attack Open Source (Score:5, Insightful)
They won't need to sue anyone once they have total control. And that is their goal.
Re:As long as they don't attack Open Source (Score:2)
Really, it is fascinating what you can do if you have money to lose.
Re:As long as they don't attack Open Source (Score:2)
Re:As long as they don't attack Open Source (Score:3, Insightful)
IMO, the most effective thing that Microsoft can do is to use the implied thre
Go Eolas! (Score:2)
Open Source isn't at much risk. The sort of people that back Eolas and friends are doing the ambulance-chasing trick -- try to extract large amounts of money from big, rich types in high-risk cases. There's no money to squeeze out of Mozilla -
Re:Ahh, Slashdot... (Score:2, Insightful)
Patent Infringement Charges against Mozilla=Superawesome!
You see, Mozilla's browsers infringe on this patent in exactly the same way as Internet Explorer. Microsoft just got sued first, and while they claim they won't sue Mozilla, it is just that, a claim.
Re:Once more proof that... (Score:2)
No! I am not a +5 Informative, nor was meant to be;
Am a Slashdot poster, one that will do
To swell a postcount, start a thread or two,
Advise the noobs; no doubt, an easy tool,
Deferential, glad to be of use,
Politic, cautious, and meticulous;
Full of high sentence, but a bit obtuse;
At times, indeed, almost ridiculous--
Almost, at times, -1 Redundant.
Re:This is a good thing (Score:2)
Just because you have a really good idea patented doesn't always even mean that you will make money from it. There have been quite a few people that have invented the next best XY, but no one licenses it, then when the patent runs out, BOOM! instant generic XY, and it's the best thing ever, and everyone is happy.
Except the poor bastard who thought of the idea, who doesn't get anything for his effort except a serious mistrust of those provisions that are sup
Re:Little surprise here? (Score:2)
Back on topic - (Score:3, Interesting)
In fact; it is not surprising to see Microsoft - who file thousand of junk patents a year - on the wrong side of an argument with an inventor who filed because he