Two Strikes for Eolas Plug-In Patent

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."

Comments

Please please please please

[Anonymous Coward]

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.)

Perhaps patent law should be like trademark law

[IGTeRR0r]

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.

Re:Perhaps patent law should be like trademark law

[ergo98]

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.

Re:Perhaps patent law should be like trademark law

[kramer]

We should note that this is a reversal from your previous complaint: "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."

Not at all, it's a corralary. The first example shows what could happen if an inventor were forced to defend every incurson. The second shows how by not haveing to defend every incursion the inventor can restrict his fights to the ones that matter without risk of losing the patent.

Garage inventor submarine patents are just as immoral as major corporation submarine patents.

I think you're missing the realities of business here. Not all people who fail to pursue a patent immediately have bad motivation. Many lack financing, and spend the time afforded by the patent to set up their business with less worry about a large businesss simply noticing their product and beating them to market.

As a final note, I'd like to point out that I've got a bachelors degree an Computer Science, am starting my second year in my law degree, and am somewhat of a garage inventor myself. That being said, I still think 90% of software patents are shit, and somewhere close to 100% of business method patents are shit. Further, I think this particular instance of the Eloas patent is a steaming pile of shit, and the court system seems to be agreeing. Still, I think "defend it or lose it" patents would cause far more problems than it would solve.

Re: A Summary for your lazy slashdotters..

[KageMonkey]

Internet Explorer is the standard for all web protocols, so why change it?

There are numerous reasons why we should change it. First of all, since Microsoft has an iron-grip in the browser market, they do not feel that it is necessary to innovate. Therefore, consumers are stuck with the same old browser iterations. Along with the lack of innovations, bugs and security flaws are also gone unfixed. Since Microsoft has the market with no choice for the consumer because it is "the standard", they know that the average Joe are not likely to switch to alternatives, so Microsoft don't feel a need to put any money and effort into fixing problems. These are the main reasons why we need to change it. It is for the good of technology and mankind.

What the hell are you talking about?

[AzrealAO]

Microsoft is trying to get a patent invalidated which would do what you think Microsoft is trying to do.

The Eolas patent they they have been sued over, and are attempting to have overturned on Prior Art grounds, claims to hold an exclusive patent on plug-in technology.

If Microsoft wins, they will have succeeded in getting a patent covering this method of plug-in interaction overturned.

here's hoping...

[the-build-chicken]

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 :(

You know what's funny.

[Anonymous Coward]

I've seen more posts defending MS than otherwise, on these articles and others dealing with XP SP 2 and IE vulnerabilities, and on articles about Mozilla.

I still don't understand where this myth comes from that the majority of slashdotters hate MS ...

Evidently the moderators are also not anti-MS because it appears posts defending MS are modded up!

At any rate, this whole patent lawsuit is a complete sham, and we all knew it from the beginning; there's no way EOLAS could have won.

Re:If up held who really is infringing?

[SunPin]

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.

Re: A Summary for your lazy slashdotters..

[satoshi1]

If it complies to standards, why does (in CSS) border: 1px dotted black; produce the same effect as border: 1px dashed black; ?

A parable about patents...

[LighthouseJ]

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 another patent based on their new and improved design and issue cameras using the new design.

Competing companies could use the 20 year old design but Polaroid already had excellent market position. If a customer wanted to buy an instant camera, do they get a Polaroid camera, a company with 20 years in the instant camera business, a household name with a now cheap price (once manufacturing prices go down to sane levels) or another company new to the market with a more expensive camera based on 20 year old technology.

Re:Consistency

[Halo1]

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. Why? Because the corporations are asking, arguing and suing for it.

In this case the corporations (or better: the "intellectual property departments" of corporations) are directly responsible. And then they start complaining about the consequences of their own actions...

Doctrine of Laches...

[gillbates]

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 continued to infringe, the plaintiff could collect damages for that.

Thus, there are two mitigating factors in favor of the defendant:

1. If the defendant changes the code so that it no longer infringes, he will bear little or no liability for patent infringement. In the case of open source, where the plaintiff should have known of the infringement from the release date (or shortly thereafter), the Doctrine of Laches could be applied to have the case dismissed.
2. In cases where the defendant continued to infringe, they could still end up owing no royalties. It could be argued that the value of the patent lies not in the actual utility of the method, but rather in its widespread adoption by industry, and the compatibility with existing devices. Hence, as it was the plaintiff's delay in bringing action which caused such widespread adoption, it could be argued that the defendant owes no royalties past, present, and future, because the value of the patent is entirely contingent on the plaintiff's prejudicial behavior toward the defendant.