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

I knew it...

[Anonymous Coward]

we do have a pay-as-you-go government!

And the winner is...

[numist]

"We pay our lawyers more."

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.)

If up held who really is infringing?

[hashish]

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.

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

[periol]

Yeah, but you're forgetting that the USPTO hasn't adjusted to the fact that computer technology works in doggie years, not human ones.

Re:Perhaps patent law should be like trademark law

[jeffkjo1]

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.

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]

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.

Re:Perhaps patent law should be like trademark law

[killjoe]

" 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

Re:Perhaps patent law should be like trademark law

[kramer]

Patents, even legitimate ones, are basically just tools for large corporations anyway. Garage inventors can't afford the fees anyway--and what good is the patent if they aren't going to be able to enforce it? Whether he or she lets the corporations get away with it, or loses the patent for lack of enforcement, the patent gets copied anyway. Your argument is self defeating.

I believe you'll find you're wrong on several points. Many patent applicants are "garage" inventors. Small businesses create 13-14 times as many patents per employee as large ones, and those patents are twice as likely to be cited in other patents. http://www.sba.gov/advo/stats/sbfaq.html

Further, garage inventors can afford the fees. The patent office has special reduced rates for qualifing small businesses. First, you don't need a lawyer -- the patent office does allow an inventor to represent himself. Representing yourself, the cost to patent can be under $2,000 (plus a signifigant outlay of time). Even with a lawyer, an average design patent will run you about $10,000. It's not cheap, but it's hardly the sole domain of large corporations as you suggest http://www.patentlessons.com/what%20patents%20cost .html

As for not being enforced, that's where the current system is very effective. Since the inventor doesn't have to sue everybody who violates his rights to mantain his patent, he can choose to only go after companies with enough money to make a prosecution profitable. The inventor doesn't have to burn money to mantain his patent against a small startup company that will simply declare bankrupcy if they lose the case.

Re: A Summary for your lazy slashdotters..

[WhatAmIDoingHere]

But on this topic, we LIKE what Microsoft is doing. Forcing the USPTO to re-examine some tech patents. We hate stupid patents more than we hate Microsoft.

I think.

What's a University doing involved in this shit?

[stratjakt]

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.

Re:Yay

[theparanoidcynic]

Only this time, and for the first time . . . . well ever they're fighting for the forces of good.

The enemy of my enemy . . . is still my enemy but I'd rather they get shot at instead of us. ;)

Wait a second

[jeffkjo1]

Hey, wait a second, I thought we only liked Microsoft on odd Tuesdays.

Re:Wait a second

[subterfuge]

I learned long ago that you need not like the people you are sleeping with...

Consistency

[Landaras]

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?

Re:Consistency

[Wolfbone]

"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.

Re:Consistency

[Jason Earl]

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.

Re:Yay

[Otter]

For anyone who attended a UC school and has bitter memories of writing check after check to "UC Regents", Microsoft has to seem like the lesser of two evils here. Although I confess to amusement at the thought of Bill pulling out his checkbook and having to write "Pay to the order of: UC Regents...uhhhh...five hundred sixty five million and 00/100 dollars". Maybe they'll tack on the "athletics fee", too.

I am scared

[Garabito]

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.

This one is really odd

[sphealey]

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

Re:Yay

[S. Traaken]

No, they are - like any 'good' corporation - fighting for themselves.

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 :(

Re:Power Play

[king-manic]

Power Play (Score:1)
by GoldenWolf (767107) on Wednesday August 18, @10:26PM (#10008809)
Yet another power play from Microsoft, once again aimed at the world in general. If this case goes through, it will add yet more lock-in to Microsoft's already locked in platform, while hurting the world in general. Does this mean we can no longer view Flash content from Linux or OS X?
Furthermore, most ad-blocking software is based on some sort of internet plugin. So does this mean that we have to get bombarded with popup ads just because we don't run IE?
Does this mean we have to pay some huge licensing fee to create a plugin for a browser -- or worse, have to pay a huge fee and have to use Microsoft's development software to create a browser plugin?

This could be the end of the 'Web as we know it. Internet Explorer and Windows country from here on, folks


This is what they call a severe case of RTFA. With a little of RTFT (Read the fucking Title) on top. There might even be some IST (Intentionally Stupid Trolling), but I think the chance is small.

Re:Good to hear

[sr180]

I dont know, I want the Evil Patent to destroy the Evil Company, but I want the Evil Company to destroy Evil Patents. Maybe I can hope for a matter-antimatter type relationship and they'll both disappear?

Re:What's a University doing involved in...

[Gogo Dodo]

The reason the University of California is involved is because the technology was developed at UC San Francisco. They didn't "buy-in". They always owned it. The patent is assigned to the University of California. Eolas was spun out of work done at UC. See the UC/Eolas Patent Q&A page.

It's not uncommon for universities to spin off for-profit companies for research done on their campuses or to license patents they are assigned.