USPTO Reexam Finds $521M Eolas Patent Valid

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."

Comments

Re:As long as they don't attack Open Source

[Anonymous Coward]

Then you should be on Microsofts side, and not Eolas. Microsoft hasn't sued anyone over patents they hold, which is more than can be said for Eolas.

Is this still an issue?

[Wakko Warner]

I thought everybody worked around the problem in newer browsers, so isn't this just a story about one really rich-again mofo?

Re:Is this still an issue?

[Keeper]

Nope. Nobody has deployed a non-infringing solution as of yet. Just about every browser (except maybe lynx) infringes on this.

Re:Is this still an issue?

[Unordained]

Shouldn't that mean that it's a rather obvious solution to practitioners in the field, possibly the only truly reasonable solution? These teams all developed similar solutions independently, without the help of the patent holders, yes? The teams didn't even know about the patent beforehand?

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?

[AaronLawrence]

Knowing about the patent is legally irrelevant.

As you say, this is rather silly in some cases. That's one of the problems with patents.

Re:Is this still an issue?

[Rattencremesuppe]

Shouldn't that mean that it's a rather obvious solution to practitioners in the field, possibly the only truly reasonable solution? These teams all developed similar solutions independently, without the help of the patent holders, yes? The teams didn't even know about the patent beforehand?

You can say this about almost all s/w patents (perhaps with the exception of special data formats like MP3 or JPEG)

Re:Is this still an issue?

[Bogtha]

Shouldn't that mean that it's a rather obvious solution to practitioners in the field, possibly the only truly reasonable solution? These teams all developed similar solutions independently, without the help of the patent holders, yes?

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.

The teams didn't even know about the patent beforehand?

Irrelevent. Patents are intended to spur innovation by rewarding who gets there first. It's entirely possible for two independent teams to come up with something innovative and non-obvious without working together. That doesn't mean that the person who gets there first isn't entitled to the reward.

I'm not saying the patent's valid, just that your reason for shooting it down isn't.

Re:Is this still an issue?

[Qzukk]

Well, it is legally relevant, but only so far as you get to pay more if you know about it.

Re:Is this still an issue?

[eraserewind]

Well, if unless they want to license the patent or drop the functionality, it looks like spurred by this patent they will have to come up with some "new, truly innovative, technologies" ;)

Re:Is this still an issue?

[Minna Kirai]

It's entirely possible for two independent teams to come up with something innovative and non-obvious without working together. That doesn't mean that the person who gets there first isn't entitled to the reward.

Yes it does. More specifically, it means that the "reward" (monopoly) should be destroyed, so the second person is entitled to use his own invention (the production of 100% his own unassisted brain-power) without paying a license to some other guy across the planet in an earlier timezone.

Patents are intended to spur innovation by rewarding who gets there first.

They are intended to spur innovation by rewarding inventors. The "gets there first" part is a limitation of legistlative precision. It's a flaw in the implementation. Ideally, patents would reward inventors exactly proportionally to how much their idea benefitted society's progress, which means that untainted independent re-invention would be a sure sign that the original idea wasn't terribly special after all.

The patent law is a simple law, and like every simple law it can lead to major unfairness. Treating a person who's 10 minutes later the same as one 10 years later is unjust, similarly to equal application of statutory-rape laws to a man of 18 or 38.

(Of course, changing simple laws into complex ones can fix much of the unfairness, but also creates further opportunities for sneaky loopholes, which amounts to bias towards the rich and retainered)

Re:Is this still an issue?

[Bogtha]

They are intended to spur innovation by rewarding inventors. The "gets there first" part is a limitation of legistlative precision.

Yes, but that limitation will always exist. If two people invent the same thing in the space of a few months, how can you prove that the second person didn't copy from the first? It's often impossible. So if "gets there first" wasn't a part of the equation, then inventors could have their livelihood taken away from them because people keep "inventing" what they've invented.

Yes, coming up with something independently and being denied use because somebody else got there first sucks, but it's an intrinsic part of providing the reward to inventors and rarely crops up in practice.

Re:Is this still an issue?

[mOdQuArK!]

So if "gets there first" wasn't a part of the equation, then inventors could have their livelihood taken away from them because people keep "inventing" what they've invented.

So because "gets there first" IS part of the equation, the 2nd guy can have their livelihood taken away from them even though they did just as much work as the 1st guy? That sounds just as unfair as what you're complaining about.

Giving _anybody_ a monopoly on a concept is a bad idea. If somebody's idea benefits society, then give them a lot of money for it. Allowing them to control what other people can do with THEIR own ideas is a bad idea all around.

Re:Is this still an issue?

[Minna Kirai]

If two people invent the same thing in the space of a few months, how can you prove that the second person didn't copy from the first?

The exists a court system which is well practiced at coming to legally-binding conclusions of proof "beyond reasonable", even though their agents are non-omniscent and their evidence is necessarily incomplete.

On at least one occasion, an inventor has produced objectively monitored evidence of PRIOR invention, and been denied because although he invented it first, he didn't file first. (Nor did he file at all, or have any belief the concept was worthy of a patent)

but it's an intrinsic part of providing the reward to inventors and rarely crops up in practice.

Since the establishment of the USA's patent office, more than $6,000,000,000,000 is in different hands because of dubious patent grants. (Of course, that's including inflation and interest, which over 300 years makes the number look VERY big)

Re:Is this still an issue?

[Unordained]

Which implies that some legislators, somewhere, sometime, understood there was an obvious unfairness in the system. That you should be punished for re-inventing something you didn't know existed yet is a bit harsh. Yes, you're doubling the effort, and yes, that's slightly inefficient in the grand scheme of things, but no ... that's not fair, either. Someone knew this, and tried to hack up a quick bugfix in the code (law) -- that knowing should cost you more. Obviously, they realized that if they changed it to "iff you know about the patent, you pay for violating it", people would just never, ever look up patents, would cover their ears when you tried to tell them about them, etc.

I'm much more in favor of trade secrets. You invent something, fine. If you can manage to only dissemenate that knowledge to people sworn to secrecy (that you can sue for violating their agreement with you) then you get to keep your invention. 'Course, that pretty much only guarantees you'll get out one batch of your product before someone reverse-engineers it, and can build their own. But it's bought you sufficient time to be the first player on the market, which isn't a bad thing. This doesn't require any special laws governing intellectual property -- it's simple contract law. Even if they add a contract, to every item sold, specifying that the buyer cannot reverse-engineer it AND must always force his buyers to agree to the same, eventually someone would break the contract, the secret would get out, it would be hard to hunt down who was responsible ... and that'd be that. (Counter-argument: patents always expire eventually, but a contract-based system could theoretically go on forever.)

As a programmer though, I'm afraid to freelance. If I go to the trouble of building really cool software, only to later discover that 0.01% of my code is already patented elsewhere, and I can't afford to buy the license for it ... my code could be stuck unable to go to production for years. If I'm unable to publish it, can it serve as prior art when I next try to publish it, and discover that someone has, in the mean time, patented something else I had already done in my code? Could this go on forever, or would I be guaranteed that after X (13? 17? 20?) years, assuming my code didn't change at all, it could finally be released without patent-infringement lawsuits waiting at the door? I don't think this is the kind of "spurring of innovation" they had in mind with patents. What's that term again? "Chilling effect"?

Re:Is this still an issue?

[Keeper]

You could also argue that the others were inspired by the work done by the patent holder, and that the concept at the time of conception was non-obvious; the fact that others implemented the idea years later has no relevence. The patent system is designed to reward whoever gets "there" first.

I personally think that the patent in question is vague and overly broad crap. But my opinion doesn't count.

wtf?

[wingman358]

"...art promoted by Microsoft..." what the heck?

Re:wtf?

[Anonymous Coward]

Yeah, Art McNuttison, Senior VP of Competitor Castration. You never heard of him?

Payday

[chill]

Eolas has only 100 shareholders, so not counting legal fees that would mean $5.21 million each. After fees it'll probably be about $49.95 each. :-)

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

Re:Payday

[berzerke]

...I've heard rumors of Eolas vowing not to go after FOSS infringers -- like Mozilla -- ...

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.

Re:Payday

[Peyna]

The University of California owns the patent and licenses it to Eolas. I wouldn't be surprised if UC wasn't helping foot the bill for the litigation and will receive a chunk of the reward as well.

Re:Payday

[focitrixilous P]

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.

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 target for the near future.

Re:Payday

[Anonymous Coward]

Yup. Which means they'll just sue any computer manufacturer which ships Mozilla or Opera with their computers.

Re:Payday

[AvitarX]

If I were them I would be gunning for AOL/TW right now.

Re:Payday

[HunterZ]

"...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."

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? People come up independently with the same IP ideas all the time; just because one person thought of it first doesn't mean he should be the only one who gets to use it. I suppose it's a cop out due to the difficulty in proving independent development vs. ripping off the idea.

2. Why do IP patents apply retroactively? (as the parent post seems to imply) It seems that if someone can file for a patent well after inventing it and then sue everyone who's been using it up to now, then patents are useless. Why? Because it means there's some sort of implied expectation that people/companies are legally responsible for tracking down and making a deal with the creator of an idea before using their invention without any patent having yet been filed. In other words, it's almost arguable that the mere threat of someone filing a patent at some point in the future accomplishes the same thing as an already existing patent.

Heckle away...

Re:Payday

[aussie_a]

while I've heard rumors of Eolas vowing not to go after FOSS infringers -- like Mozilla

If they were truly serious about that, they would allow FOSS projects to go to them for a free license that doesn't expire and is valid whilever the code is licensed under a FOSS license (if a project holds the copyright to all the code, they can re-license it). Seeings how this hasn't been done, they're obviously not very serious about not going after FOSS infringers.

Re:Payday

[killjoe]

"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?"

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

[DeafByBeheading]

1. No burden of proof comes into it. If you've got a patent, anyone who came up with the same idea is SOL, independently or not. Of course, your patent will not be granted (or may be deemed invalid, if it has already been granted) if there exists prior art--proof that someone did the same thing before you filed your application (date of original application is the key here--which is kind of dumb because it can take a year or two for a patent to be granted, which is plenty of time for someone to independently come up with the same idea in the software world. And since patent applications are secret until approved, the person coming up with this same idea independently has *no way* of knowing it's in the process of being patented, even if they check. But anyway...)

2. See (1), mostly. If you can prove something had already been implemented before the filing of the patent application, you're pretty much safe. Most of the weird cases come up from the timing issues in (1).

Re:Payday

[mavenguy]

1) As another reply has indicated, independent invention is not, per se, a defense against infringement. Of course, the timing and nature of the various acts leading to the invention by the inventor and the infringer could have an effect on the validity of the patent claims.

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). 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 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.

Re:Payday

[Gilgaron]

If that is true, how does Eolas have grounds to sue? Shouldn't that be the sole responsibility of the patent owner?

Re:Payday

[OwnedByTwoCats]

Anotehr problem with the "date of filing" is that patents can (could? did this change?) be amended. So one path to riches was to file a patent, keep it "in process" until a similar-sounding technology matures and becomes widespread, then amend the patent to cover the by-then common technology, and then sue.

See "Lemuelson" for the classic example of this kind of parasitic indulgence.

Re:Payday

[Dan Ost]

I believe that the courts recently ruled that Lemuelson's
patents are catagorically unenforceable.

Google News might turns something up if you looked for it.

Re:Payday

[Peyna]

That would depend on the terms of the license and what rights it conferred.

35 U.S.C. 261 says that for the purpose of assignation, patents are to be treated like personal property. Therefore, any and all rights, including the right to sue for infringement, can be assigned to a third party.

Being a license means that UC probably retained certain rights, and limited Eolas' rights to certain uses.

I forget

[lheal]

Are we for Microsoft because we hate software patents or are we for Eolas because we hate Microsoft?

Congress is too busy worrying about baseball players taking steroids to actually fix the system.

Re:I forget

[pgpckt]

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.0 2795: ( the bill)

http://www.ipo.org/template.cfm?Section=Patent_Ref orm1&Template=/TaggedPage/TaggedPageDisplay.cfm&TP LID=196&ContentID=18391&requestTimeout=500 (everything you could ever possibly want to know)

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

[Anonymous Coward]

Let's put it this way:

Suppose you live next to a known child rapist who also happens to be a decent biologist. You avoid him whenever you leave the house. You tell people going into his house that he's a bad person. You just hate this guy.

Now suppose that your neighborhood gets infected with a highly-contagious flesh-eating bacteria that slowly destroys anyone who comes in contact with it, and your neighbor catches it. He tries to create a cure, but dies before he can finish it.

Do you feel good that a child rapist has died from a flesh eating bacteria? No, you realize that soon, you too will catch the disease, and the rapist was your only hope.

Re:I forget

[Anonymous Coward]

Software patents trump Microsoft.

Re:I forget

[Tablizer]

Congress is too busy worrying about baseball players taking steroids to actually fix the system.

I found a solution: I just patented One-Click Steroid Injections.

Re:I forget

[Krach42]

So, first to file is a *good* thing? Because way I see it, First to File would give Eolas an undeniable clinch.

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

[FidelCatsro]

I realise we are not going to get rid of Patents any time soon . I have my own Ideas for global patent reform though.

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.
5: After the 3-5 year period then the patents enter the public domain and can never be re-patented
6: companies found to have patented another companies implementations will be fined heavily
7: Patents may be granted for a process which may save lives , though any attempts to restrict it with unreasonable fees will cause a loss of the patent .
8: Algorithms may not be patented

Re:I forget

[troc]

Erm. No.

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

[HuguesT]

Prior art still matters even if the rule becomes "first to file", on the contrary. What it means is that if one publishes something novel in whatever format then it become unpatentable, unless the publication is a patent.

Re:I forget

[Kuscheltier]

*cough* First to file a patent instead of first to invent is NOT a good thing. The patent law needs a reform, but this one goes into the wrong direction. Also, its less the law, then the USPTO being the problem.

Re:I forget

[Anonymous Coward]

1:They should be on a first to implement basis (real world use of the concept)

Most of the points I agree with, but this one would hugely punish smaller inventors. Real world implementation can take years and serious money, making it basically impossible for all but the largest companies. The way it works now is the inventor patents the concept and practical details and then licenses the patent to a large company who implements it. If the small inventor loses patent protection in this case, they lose everything. The large company can simply go, "sure he may have come up with the idea, worked out all the details, and built a few proof of concept models, but we implemented first, thus the patent is ours and we owe the inventor nothing"

Re:I forget

[Lonewolf666]

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).

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 keep using it. But that is not the same as getting the patent revoked.

Re:I forget

[FidelCatsro]

Real world implementation could be perhaps just a concept design of the product or a prototype .
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

[Anonymous Coward]

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.

Yeah, because we all know how well "prior art" works in software/Internet cases these days.

Re:I forget

[bwalling]

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.

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 Patent Submission Corporation). Then, Microsoft/IBM/Patent Factory invents it a few years later and patents it. I lose because I didn't have much money. That pretty much blows.

On top of that, first to file encourages companies to file early and often, which won't lead to an improvement.

Re:I forget

[OohAhh]

Let's assume what you say about the first to file system is correct. Say you invent something. Someone else invents it later, but gets their patent application in first. As you made the invention first your work counts as prior art and invalidates their patent application. But surely this means the system is really one of first to invent? You have to prove prior invention just as you would with first to invent, and so there would be no effective difference between the two systems. That is unless I've misunderstood what you're saying.

It seems to me that the whole point of first to file is that prior invention is made irrelevant. Therefore no need or opportunity to prove precedence of invetion at all. This isn't the same as saying all prior art should be ignored, but that it has to have been published openly to qualify as such.

Re:I forget

[Anonymous Coward]

And it is a good thing for consumers. Yikes, get your facts straight.

Yikes, indeed. Have you actually read it?

1. expands effect of joint research agreements to ignore some in-company prior art
   
2. patents will be filed in name of the company, not the individual
   
3. deletes requirement that the best mode of practicing the invention be revealed in the patent
   
4. deletes the defense of inequitable conduct unless a court has already held the patent invalid and the patent owner did it (i.e., if his attorney did it, the patent stands)
   
5. forbids courts from deciding inequitable conduct; uses PTO instead
   
6. requires higher levels of proof of intent for inequitable conduct
   
7. limits increased damages for willful infringement
   
8. no injunctions until after appeal, with limited exceptions
   
9. no injunctions for patentees who don't make or sell
   
10. anyone who submits a declaration opposing a patent can be deposed
    
11. does nothing to strengthen rule against obvious patents
    
12. expands intervening use rights
    
    These are all things that are pro-megacorp and anti-sole inventor. There may be good stuff in this bill, but there is plenty of bad.
    

Oh yes

[lightknight]

*cue evil laugh* Muahahahaha! Power to the patent (I'm biased, having my own hand in the game)!

But in all seriousness, this is both a good and bad thing.

It's a bad thing (in the eyes of most /.ers, OSS, etc.) in respect to the fact that this confirms a broad patent, with all the WMD-type damage that in can incur.

It's a good thing (again, in the eyes of /.ers) in that this patent is pointed at Microsoft. As MS is quite adept at dishing it out (destroying competition, litigating projects out of existance, etc.), it's nice to see a little fair play. Bonus points because it's the little guy (small inventor) giving it to the big guy (corporation).

Re:Oh yes

[craXORjack]

Maybe its a bad thing it was pointed at Microsoft. By putting up a lame defense, ensuring that Eolas would win, now Microsoft can buy Eolas for a billion or so and use the now affirmed patent against everyone else. I wonder if the patent can be challenged again when it is aimed at someone new by a new owner.

Re:Oh yes

[mcc]

Bonus points because it's the little guy (small inventor) giving it to the big guy (corporation).

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 one of Microsoft's branch offices, so that makes everything OK, right? All hail these modern Robin Hoods, who steal from the rich and buy $31M condos and yachts for themselves with it.

Re:Oh yes

[YOU LIKEWISE FAIL IT]

Little guy inventor? Didn't Eolas buy this patent off someone else in the first place? Also, as I understand it, Eolas has no stake in the browser market - the patent lies fallow in their hands except for licensing use. If it's true, I don't call that laudable, I call it an abuse of the system.

Re:Oh yes

[killjoe]

It's a good thing because laws don't change until they hurt the rich and powerful. If MS gets slapped with a dozen such suits and loses all of them for a half a billion they will have lost 6 billion dollars which will not hurt them at all but.... Never mind.

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 this guy off and be on his merry way.

Re:Oh yes

[Anonymous Coward]

I fear you foresee the future, sadly no one can do anything about it now.
Seeing an EFF guy pro patent is strange either.

Re:Oh yes

[darkmeridian]

The patent can be challenged by every schmoe accused of infringement as long as he hadn't sued or been sued before. This is because the new schmoe did not have his day in court to challenge the patent. (If they make the same arguments as the last schmoe, however, they probably will lose.) Patent holders, however, lose their patents against everyone if they lose only once, since they had their day in court to defend their patent. This difference is why people keep suing firms with patents.

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[ ] 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

[Anonymous Coward]

Uckfay Emay! Mod this mofo parental unit waaaaaaaayyyyyyyyy up!

Re:Slashdot EZ Post TM

[Anonymous Coward]

[ ] BSD is dead

Re:Slashdot EZ Post TM

[rm69990]

[ ] All your $topic_item Are Belong To Us!!!

Re:Slashdot EZ Post TM

[Anonymous Coward]

ok...well, at least mod him up a wee lil bit for the hum0r

Re:Slashdot EZ Post TM

[dtfinch]

I wonder how many times they'll be able to repost this and still be modded funny.

Re:Slashdot EZ Post TM

[JoshRosenbaum]

[X] Copy paste $standard_troll_text

And my response is copied from here
Which responds to the same sort of deal.

Re:Slashdot EZ Post TM

[Tablizer]

Slashdot EeziPost (TM) MK I - [ ] Another: [ ] Dupe [ ]
[X] Frist psot [ ] Link to goatse ... [X] In Soviet Russia, $topic_item owns you! ....

You must be a real joy on your honeymoon.

Re:Slashdot EZ Post TM

[Anonymous Coward]

Wonder no more!

Re:Slashdot EZ Post TM

[0xC2]

[X] Coralized!

Re:Slashdot EZ Post TM

[Linker3000]

Agreed: as the originator I have had my '15 mins of fame with it' and I'll leave it to others to post it to oblivion.

L3K

Re:Slashdot EZ Post TM

[ihavnoid]

You forgot Old Koreans!

Re:Slashdot EZ Post TM

[Devistater]

Until everyone reads it. First time seeing it for me.

Re:Slashdot EZ Post TM

[op12]

So...[X] Copy paste $standard_troll_text_reponse

Re:Slashdot EZ Post TM

[JoshRosenbaum]

Hey, let's not get recursive here! ;)

Re:Slashdot EZ Post TM

[Tablizer]

You know, life DNA is made up of only 4 "letters". Slashdot posts being made up of about 25 can have at least as many infinite combinations in infinite diversity (to quote spock).

Who's side should I be on?

[Anonymous Coward]

Patents are bad, but Microsoft is bad too.

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!

As predicted earlier on Slashdot,

[Anonymous Coward]

Oh great oracle, Slashdot. You are so wise. Your insights in to the future are renowned across the land. I beseech thee, please cast your all knowing eye across my destiny and pray tell me when will I get a girlfriend?

Re:As predicted earlier on Slashdot,

[Zordak]

when will I get a girlfriend?

When you stop spending your evenings posting on Slashdot.

Re:As predicted earlier on Slashdot,

[Anonymous Coward]

I am the great Slashdot. I am all user accounts, and yet I am none--I am THE Anonymous Coward. As you have humbly submitted thyself to my greatness, I shall take pity on thee and bestow my answer...

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,

[Scorillo47]

Where are my mod points when I need them? :-)

Re:As predicted earlier on Slashdot,

[Anonymous Coward]

Ah, the Oracle knows all answers... and, taking pity on your lack of knowledge, I will gladly assist you:

[bold, echoing voice]
Your mod points have been acquired by someone yet more powerful than thee.
[/bold, echoing voice]

And, by the way, you owe the Oracle 1 mod point for the answer.

Re:As predicted earlier on Slashdot,

[Anonymous Coward]

Harsh but funny!

Pffft

[Anonymous Coward]

Please. I read this on digg yesterday.

Re:Pffft

[houseofzeus]

Digg being Digg you probably also read about 20 'articles' that were either self-pimping links to really dodgey blogs providing commentary on the digg 'phenomena' or super newbified 'tech' articles.

Luckily if you missed these you'll no doubt see them again because Digg have, somehow managed to create a system that results in even MORE dupes than slashdot, even on the front page.

This post is completely off topic and will no doubt make my karma even worse than it already is, but the fact of the matter is that Digg will be worth reading when:

• Stuff that is actually worth reading starts making the front page instead of being buried 20 back.
• Digg users stop feeling that they somehow need to 'prove' themselves by having a pissing contest with slashdot, because you couldn't possibly read both now could you.

Money Can't Buy You Love...

[LotsaCaffeine]

But it can get you a nice patent settlement.

Re:Ahh, Slashdot...

[Guspaz]

The problem is that you can replace Microsoft with Mozilla, and your statement changes to:

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.

That's because patents don't affect..

[CyricZ]

.. your average Joe and Jill American. At least not directly, as far as they're aware. Baseball does, unfortunately. That is why, as sad as it is, real issues don't get the attention they deserve, while farcery like athletes using steroids does.

Re:As long as they don't attack Open Source

[CyricZ]

Microsoft hasn't sued anyone over patents they hold, ...
 
... yet. Perhaps this will awaken them to the financial gains possible through such lawsuits.

Once more proof that...

[xactuary]

A foolish consistency is the hobgoblin of little minds.

Re:Once more proof that...

[Skippy_kangaroo]

With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Out upon your guarded lips! Sew them up with packthread, do. Else if you would be a man speak what you think to-day in words as hard as cannon balls, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day. Ah, then, exclaim the aged ladies, you shall be sure to be misunderstood! Misunderstood! It is a right fool's word. Is it so bad then to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood.

Re:Once more proof that...

[Skippy_kangaroo]

Oh, sorry, scratch that. That's not what I meant at all.

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:Once more proof that...

[Anonymous Coward]

Slight re-wording, to reflect the current state of Slashdot:

No! I am not a +5 Informative, nor was meant to be;
Am a Slashdot poster, one that will do
To swell a pageview, start a troll or two,
Advise all and sundry, though I've no clue,
Undeferential, glad to be of use,
Impolitic, ignorant, and obnoxious,
Full of high self-regard, perhaps a bit obese;
Most times, indeed, fairly ridiculous--
Almost, at all times, a tool.

With apologies to parent poster, and, of course, T.S. Eliot.

Hey Eolas!

[Chordonblue]

Party in Middle Earth tonight! You're buying!

Signed,

Frodo and Gimli

Re:Hey Eolas!

[bc90021]

I wish I'd had mod points - very funny. :-)

Re:Hey Eolas!

[IWorkForMorons]

Funny, I thought Kevin Sorbo would be signing that...

Re:Hey Eolas!

[Capt James McCarthy]

Party in Middle Earth tonight! You're buying! Signed, Frodo and Gimli

Samwise will be serving of course. And yes, it's _that_ kind of party.

Re:Hey Eolas!

[Anonymous Coward]

Dear Frodo and Gimli,

Sorry but I can't make it. I'm not feeling well. I'm a little hoarse right now. Maybe next week?

Signed,
Eolas

Re:Hey Eolas!

[Anonymous Coward]

Eolas is Irish for information or knowledge (maybe Scots Gaellic too, think I saw it on a tourist info board when I was there.) Maybe just a coincidence? Wasn't the lotr character named Legolas?

Re:As long as they don't attack Open Source

[SpaceLifeForm]

They are waiting. They lost this on purpose basically to give legitimacy to software patents. They are gaming the system.

They won't need to sue anyone once they have total control. And that is their goal.

Math error

[lheal]

Eolas has only 100 shareholders, so not counting legal fees that would mean $5.21 million each.

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:Math error

[Anonymous Coward]

News alert: lawyers don't make that kind of money. This may be a $521 million lawsuit, but as it's been run by a corporation, they have undoubtedly retained their lawyers based on hourly compensation (like almost all attorneys) and the lawyers are probably making substantially less than half. Depending on how much time was spent on the case, I'd say $1 million - $2 millionish. Figure on $300 an hour as a good rule of thumb.

I remember now.

[trentfoley]

1) We hate Eolas because we hate software patents.
2) We hate Microsoft because we hate proprietary software.

Concerning Congress, steroids, and fixing the system -- I am at a total loss. I've never read or heard of Congress successfully fixing anything. I do recall many events to the contrary.

This is a good thing

[Anonymous Coward]

This is good new not because we all hate Microsoft, but because this shows how fucked up software patents are. A few more cases like this and there will be serious change, by necessity. Once corporations start to feel the pain, they'll get the patent laws changed. But perhaps I'm being too optomistic thinking that they'll change it for the better.

Re:This is a good thing

[Krach42]

In my book, Bad Patents rank worse than Microsoft.

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 supposed to protect him.

Re:This is a good thing

[ScrewMaster]

And the provisions did ... nobody used the next best XY, so no violations occurred. If the individual in question was unable to figure out a way to make money with his idea in the time allotted that's just too goddamn bad. That's why the term "limited monopoly" is bandied about. The government grants you that monopoly (although they don't guarantee to enforce it for you ... that's still your job!) and it's up to you to make of it what you will. I'm truly irritated by the way modern business (particularly the media people) perceive the Federal Government as merely a tool to enforce their rights at taxpayer expense. The granting of a patent or copyright is not a license to print money: you still have to have the business sense to make your idea work for you. The problem is that now the patent system itself is a. raising too many obstacles in the way of inventors who really do have something and b. discouraging people from even trying. It's defective and needs to be not "reformed" but "reverted". It used to work reasonably well.

Re:This is a good thing

[Krach42]

I'll take that arguement. Good points. I wasn't really arguing so much that patents suck because you can patent something and not make money from it. More so, that patents don't fit what people think they do.

Yeah, boo hoo for the guy who invented something then didn't make any decent money from it before the license expired. It's true that's how the law works. But in some ways, if something like that is going to happen, then people should just release their patent and let the world have it.

I mean, if you were sitting on a way to extract silver out of some crappy mud that no one uses, but not the mud to actually use the extraction process on (and thus get rich) you're probably better off just releasing it, and hope for getting famous instead of rich.

Re:This is a good thing

[ScrewMaster]

True ... although the important aspect of "limited monopoly" is that it is limited in time, so no matter how important your invention, the public domain (which is what Jefferson, Franklin and the rest were mostly concerned about) will eventually be enriched by your work. I agree that if you're not using your patent (or copyright) the rest of us should have a shot at it, and that is exactly how the system is supposed to work even if you choose to sit on it. Matter of fact, Jefferson considered the granting of patents and copyright as a "loan from the public domain" and was really against them. If he could be brought forward through time to today, I can just imagine his sudden intake of breath, and expression of shock and dismay upon learning of the current state of the "intellectual property" (ha!) law. But then again, he sort of figured it would happen eventually, anyway.

... The oracle says

[StarsAreAlsoFire]

... Try Again....

*shake*shake*shake*shake* .... Not Likely...

Re:As long as they don't attack Open Source

[Anonymous Coward]

...and then, the aliens will attack (because they like to kick us while we're down) ...

Re:Ahh, Slashdot...

[clintcan]

Very correct. For those who think that Firefox is safe because Eolas said they won't hit opensource projects, think of this... Mozilla has already a corporate entity now, aside from the Mozilla Foundation. Who knows what they will think?

Best. Post. Ever.

[Anonymous Coward]

This is what makes slashdot incredible. Haven't laughed this hard in months.

Lets abstract it a level...

[nmoog]

[X]Hilarious slashdot humour-form post with relevant options ticked.

Re:Lets abstract it a level...

[Have Blue]

[X] Joke from next metalevel above previous post.

Re:Lets abstract it a level...

[Anonymous Coward]

[X] LOL

Not Ironic

[Anonymous Coward]

Ironically, Eolas' defense was bolstered by the arguments of its expert witness, 2005 EFF Pioneer Award Winner Ed Felten."

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.)

Re:Not Ironic

[Anonymous Coward]

Hahaha! I find it ironic that there is a comment lambasting the editors for using "ironic" incorrectly.

Your head asplode!

Re:Not Ironic

[Anonymous Coward]

What's ironic is 10,000 spoons when all you need is a knife.

Prior art: HyperTIES hypermedia browser

[SimHacker]

HyperTIES 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.

Illustration: HyperTIES Browser NeWS Client/Server Software Architecture.

Paper: Designing to Facilitate Browsing: A Look Back at the Hyperties Workstation Browser

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:

• an innovative solution to link identification: pop-out graphical buttons of arbitrary shape.
• application of pie menus to permit low cognitive load actions that reduce the distraction of common actions, such as page turning or window selection.
• multiple window selection strategies that reduce clutter and housekeeping effort. We preferred piles-of-tiles, in which standard-sized windows were arranged in a consistent pattern on the display and actions could be done rapidly, allowing users to concentrate on the contents.

[...] 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

[putko]

Software patents are so incredibly awful for new entrants that I just cannot get excited about this.

Sure, I hate -- HATE -- Microsoft with a passion. But the existing patent system will only help them.

Re:Not happy about this

[Anonymous Coward]

Indeed.

With first-to-file and so on coming up if I start a company to write some software to accomplish a task I have to be aware at all points during the development process of patents that I might be infringing. I need to do a risk assessment of the chances of infringing patents for each project, and possible licensing fees that might be due. This means I need to employ a patent clerk and patent risk assessor no matter how small my company is otherwise a bank may be concerned that I am not properly assessing the business risks and may not lend me money. This means big additional costs on small companies.

An alternative strategy is to have my own set of patents in the area in which I wish to do business in the hope of being able to use this portfolio defensively. This requires that either I have managed to create this already or a huge additional cost in the initial phases of a company to be able to develop and patent these ideas. Again it is a huge strain on a young company.

Basically this may limit new companies to ones that either just do work and have no intellectual property to speak of, ones that have incredible financial backing from the outset, or ones that are spin offs from universities where an existing IP portfolio is being used in the spin off, or companies that licence the required set of patents from the outset. Either way I think there will be less small companies starting up to write software, and small businesses are often the engines of innovation and economic progress.

With traditional industries making physical products the chances of a simple product including patented ideas is smaller than software which can quickly involve a variety of concepts, some of which may be patented.

Re:Not happy about this

[Anonymous Coward]

Defensive portfolio use is largely a myth. You can't negotiate with Eolas by threatening to counter-sue them for infringing one of your patents, because they don't make anything! All they do is write patents and sue people.

Re:Not happy about this

[gronofer]

You seem to be forgetting about the other, and safer, strategy for small companies, which is to register patents and later sell the ones that turn out to be valuable. There isn't any need to make and sell any products under the patent system, rather it seems to be actively discouraged.

Disturbing

[Anonymous Coward]

Wow. I'm shocked.

I really thought common sense would prevail in this case and the patent would be thrown out. Evidently, we live in Bizzarro World where up is down and wrong is right.

Re:Disturbing

[TheSloth2001ca]

Welcome to the USPO, where common sense has gone the way of the dodo

Re:Disturbing

[JustOK]

The dodo didn't have a patent.

Re:Disturbing

[ray-auch]

and if it had had, it would have expired by now anyway

Re:Disturbing

[Altanar]

Unless it was owned by Disney, of course.

Eolas isn't what scares me

[serutan]

Forget about the 10 shareholders. The major players in the world of "Intellectual Property" have always been people who create nothing but merely buy rights from others. I don't fear the Eolas shareholders as much as I fear somebody else with a few hundred $million who might buy their rights and start systematically going after people for a few thousand or tens of thousands of dollars a pop. And all the while they'll be making self-righteous proclamations about protecting "their" technology.

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.

Re:Eolas isn't what scares me

[orkysoft]

Still, there are some good things about this case: it demonstrates the ridiculousness of these "rights" of "people who create nothing but merely buy rights from others", as you so eloquently put it.

$521M is a large sum, enough to draw a lot of attention to this case, and in this case the victim is Microsoft. The one company that we here don't like very much, and which can afford to pay such a sum, or litigate against it.

Re:Eolas isn't what scares me

[woverby]

A few things:

I fear somebody else with a few hundred $million who might buy their rights

If patents are valuable to own, I don't see anything wrong with buying them and hoping they yield more than you paid for them. We allow this with corporate stock, for example. People can buy low and sell high, profitting even though they did *nothing* on their own to create value. The problem here, if there is one, is not who can enforce a patent but under what circumstances, and for how long. For example, I suspect that Microsoft, IBM, and Apple would be considered "major players" in IP with their many patents. Why is the threat they pose any less?

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

The claim to ownership happens when the patent application is filed, long before the patent is granted and often before the value of the invention is known. This is not a secret, nor is the invention itself a secret. All patents, and many applications are available for public inspection. Finally, I can understand the motivation of waiting to assert your right until you have a chance at a big award. Patent litigation can be very expensive, and you can't afford to just sue everyone who might infringe right away. What alternative do you propose to the current system of announcing your patent publicly and then suing when you think you have a case worth pursuing?

Thanks, Walter.

Re:Eolas isn't what scares me

[Qzukk]

The claim to ownership happens when the patent application is filed, long before the patent is granted and often before the value of the invention is known. This is not a secret, nor is the invention itself a secret. All patents, and many applications are available for public inspection.

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 search starts over. If they find something, I've just wasted a lot of time and money, something a small company can't afford. Maybe the company can license the patent on terms that won't bankrupt it, then again, maybe the holder will simply refuse to license it at all. What's worse is that the abstract and title often has little to do with the claims (see the "player piano" patent being used against Apple)... effectively making keyword searches useless, meaning that unless the team of people read every single patent individually there's still no guarantee I won't be sued.

Re:Eolas isn't what scares me

[Pendersempai]

"I don't fear the Eolas shareholders as much as I fear somebody else with a few hundred $million who might buy their rights and start systematically going after people for a few thousand or tens of thousands of dollars a pop. And all the while they'll be making self-righteous proclamations about protecting "their" technology."

And you know what? I say bring it on. This hypothetical millionaire intellectual property broker has the legal right to do exactly as you suggest. The problem is the system of laws that gives him that right. And there'll be no faster way to promote the change of those laws if this guy shows us just how broken they are.

I've always thought that the best way to change bad laws is to enforce them vigorously. Imagine how long the absurd 55mph freeway speed limits would last if you got pulled over for driving 56.

Re:Eolas isn't what scares me

[ScrewMaster]

My solution would be to limit the overall term of patents. Seven years, say, to make something of your invention and if you can't then the rest of us get to have a shot.

Re:Ahh, Slashdot...

[Anonymous Coward]

Microsoft just got sued first, and while they claim they won't sue Mozilla, it is just that, a claim.

And even if they won't, how long until they sell the patent to someone who will? Or lose a lawsuit and have the court auction it off for them?

Whoever said that...

[BiggerIsBetter]

...didn't have enough money.

Only leaves us to ask more questions...

[supergeekmake-it-so.]

So where do we go from here?

It seems the patent office is going to dictate symantics and who gets paid for them. It boggles the mind to belive someone should have a patent for the "single-click" http://www.eolas.com/technology.html use of a hyperlink. Does that also mean that I need to rush out and try to get the patent on the wheel, or the @ symbol in email addresses?

While I don't claim to be an expert in patent law, it seems that things are continuing on the path of certain destruction. Call me a naysayer, or whatever you like, but something needs to change.

EULA

[Anonymous Coward]

Did anyone else immediately think Microsoft VS EULA instead of Microsoft vs Eolas?

Premature panic

[1ucius]

Just because the USPTO reissues the patent doesn't mean that it has the same scope as the original. The new art may have forced Eolas to narrow the claims so much that they are not relevant anymore (or maybe not). My point is that we still don't know anything important.

Re:Premature panic

[Anonymous Coward]

we still don't know anything important.

I don't know about you, but I know some pretty important things...like my ATM pin number and where I keep the Dr. Pepper.

Re:Premature panic

[Anonymous Coward]

We already knew that the appeals court noted "An example of a DLL is spell check; a DLL is a component that can run only within another application."

We already knew that the district court upheld "executable applications" as used in the '906 patent refer to any computer program code that is not the operating system or a utility, that is launched to enable an end user to interact directly with the data.

What we now know from the re-examination case file is that "the executable application is a separate application from the browser application."

It will make it difficult to enforce the '906 against a browser using a plug-in as the executable application since a plug-in is provided via a DLL which the courts already note is a component of an application, not a separate application.

Re:As long as they don't attack Open Source

[adtifyj]

I am not so sure that we should be barracking for Microsoft on this one. Microsoft could be involved in this, playing Eolas like they are assumed to have played SCO. Microsoft can afford the settlement and pay a license on the patent, and would willingly pay if it was a set back to Open Source.

At the moment they look like a knight in shining armour, defending the web from silly patents; that alone is sufficient reason for everyone to look deeper.

Sue 'em!

[Tablizer]

software company Eolas, describes how a Web browser can use external applications.

Viruses and trojans do this all the time. Now we can sue virus writers for patent infringement also :-)

Words are not what they say they are.

[New Identity]

The examiner deciding the reexamination made a classic error. Patent claims are supposed to define what is "covered" by the patent, and what is not. So, if you describe a granite wheel mounted on a oak axle, your claim should say whether your patent covers the wheel itself, or merely a granite-on-oak wheel. The examiner in this case bought the patentee's argument that "interactive processing" really means "ongoing real-time manipulation and control by the user". Now, if the patentee had wanted to claim that the patent covered "ongoing real-time manipulation and control by the user", the simple solution would have been to put "ongoing real-time manipulation and control by the user" in the claims, to let everyone know that is what the patent covers. Nothing in "interactive processing" says "ongoing". Processing can interact, then stop, then start again and interact again. An externally launched applet does not have to be "real-time" to perform "interactive processing". Manipulation and control are words to argue about with your wife, not to define a software invention. These words are far too general to help legally define a technical invention. Hey, if you think about it, I'm manipulating and controlling you right now, in real time, in an interactive process. Did I launch an external application to write this? Are these words manipulating your perceptions and thoughts? PINK ELEPHANTS! Are we not interacting? Don't even get started on the meaning of the terms "external" and "application".

Re:Words are not what they say they are.

[Anonymous Coward]

Hey, if you think about it, I'm manipulating and controlling you right now, in real time, in an interactive process.

It's not interac... Nevermind.

Re:Words are not what they say they are.

[OohAhh]

I'm manipulating and controlling you right now,

No. Influencing, maybe, but control would require you to be aware of the exact way I would respond.

in real time,

Whatever that is supposed to mean.

in an interactive process. Did I launch an external application to write this?

Probably. *8)

Are these words manipulating your perceptions and thoughts?

No. Influencing, maybe, but to manipulate would, again, require knowledge of how I would react.

PINK ELEPHANTS! Are we not interacting?

Again, no. You were acting, posting, I was reacting to the post, while reading it. It's possible that my reply makes it interaction. It's also possible that I am now acting and you will react to that when you read it. To my way of seeing it interaction requires, at least, two way, simultaneous or near simultaneous action and reaction.

Re:As long as they don't attack Open Source

[Omniscientist]

You hit it right on the nail buddy. Some would call what you said uninformed paranoia, but this is definitely a move Microsofts wants to make.

Really, it is fascinating what you can do if you have money to lose.

Re:As long as they don't attack Open Source

[ComaVN]

Wouldn't it be far cheaper for Microsoft to set up some sockpuppet companies that blatantly infringe on some Microsoft patents, and sue those companies to "give legitimacy to software patents"?

Seems unlikely that anyone, even Microsoft, is happy about losing $521M. That's an extremely risky investment if you ask me.

Campaign website: NO SOFTWARE PATENTS

[Steeltoe]

This website offers nice rebuttals and arguments against software patents or "computer-invented inventions" as they're popularly called by their proponents:

http://www.nosoftwarepatents.com/en/m/intro/index. html

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 /. might even make you more competitive, since you're already wasting time reading it! ;-)

It is never too late! The costs of maintaining a broken system is greater than fixing it, no matter when you finally decide to do it!

does it still matter?

[idlake]

If the patent only covers applets, Flash, plug-ins, and ActiveX, then it probably doesn't matter anymore: they are not being used for much that is important anymore, and anything that eliminates these from the web is a good thing as far as I'm concerned.

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.

Re:does it still matter?

[Bogtha]

If the patent only covers applets, Flash, plug-ins, and ActiveX, then it probably doesn't matter anymore: they are not being used for much that is important anymore, and anything that eliminates these from the web is a good thing as far as I'm concerned.

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 support? You think AJAX would be anywhere near as popular as it is today without GMail getting everybody's attention?

Oh, and I'm not sure of the specifics of the patent, but wouldn't Firefox extensions be considered a form of plugin? There's no real difference between the two.

the eolas name

[timmarhy]

is it just me or does eolas remind you of ebola? a highly infectous virus that rips the guts out of all bodies it infects, and produces nothing useful just kills everything.

Re:the eolas name

[Anonymous Coward]

Eolas means "Information" in Irish!

Go Eolas!

[typical]

I'm rooting for Eolas. You have to make software patents unacceptable to large companies before they'll go away. Eolas is trying to make a quick buck, but in the process is making companies take a long, dubious look at the dangers of having software patents around.

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 -- just a long, protracted battle.

The sort of people that use patents against Open Source are entrenched types that keep vague threats of infringement alive to keep OSS projects from entering their little pond. Usually those big companies above.

This makes patents much more dangerous to large companies.

Eolas didn't even cause that much damage in terms of prescedent or direct impact. The point is that now every lawyer and lawyer-backing investor knows that they can pull down half a billion dollars from a large company if they can just find one group of sharks with a patent. Lots of incentive to start a feeding frenzy.

Re:As long as they don't attack Open Source

[bigsteve@dstc]

I don't think so. The financial gains that Microsoft might get by sueing over patent infringement are dwarfed by the financial damage they would take if they did this. This is the kind of thing that would cause governments to start new anti-trust investigations. Besides, the people who they'd most like to sue (the open source players) wouldn't be able to pay significant damages to Microsoft, and they have very vocal friends.

IMO, the most effective thing that Microsoft can do is to use the implied threat of lawsuits to intimidate people / companies. Of course, this doesn't work so well if their bluff is called.

Actually, I think that Microsoft itself is in real danger over software patents. There could be 100's of software patents in the system that Microsoft is violating, and their healthy financial position makes them the ideal "mark" in a game of high stakes patent poker.

Eolas and Free Software

[DavidNWelton]

Actually, the guy behind Eolas is pretty good to free software - mostly through his involvement in the Tcl community:

http://wiki.tcl.tk/1935

http://wiki.tcl.tk/212

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

[Minna Kirai]

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.

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!

Re:Eolas and Free Software

[NanoGator]

"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."

Um, no it's not. You're forgetting that Microsoft holds a lot of patents. This sort of victory arms Microsoft to be an even bigger bunch of bastards.

Choose your battles carefully.

Don't we me....

[jotaeleemeese]

I am against software patents.

But in a world with software patents, I am all for abusive companies to get a serving of their own medicine.

Re:Don't we me....

[Anonymous Coward]

Because Microsoft abuses software patents?

Time limit on "sleeper" patent claims

[Lonewolf666]

In one case of "submarine patents", the court ruled them unenforcable. See
http://www.groklaw.net/article.php?story=200509131 31027544
It was, however, a rather extreme case, so I am not sure if the same reasoning would work in Eolas vs. Microsoft

Good news and mostly bad news

[FlorianMueller]

Bad news:

• Don't let us gloat over the damage to Microsoft. The Eolas patent is a threat to large parts of the Internet as we know it.

• Eolas' success will encourage investments in industrialized deep-pocket patent trolls by venture capitalists, corporations, and high net-worth individuals. Look at this Goldman Sachs venture here, for an example: www.ipvalue.com

• The Eolas case will be used as a key argument of the IT industry to support that Patent Reform Bill in US Congress, a piece of legislation that would limit the damage an Eolas can cause to a Microsoft while giving the large players ever more advantages and disadvantaging the defensive power of open-source projects and smaller companies.

Good news:

• Microsoft backed virtually any pro-patent lobbying entity in Europe (ACT, CompTIA, Campaign for Creativity, EICTA, BSA, and numerous local ones). A dozen Eolas-like cases down the road, they may reconsider their stance.

• As a representative of the anti-software patent movement in Europe, I've been nominated by a jury for the Europeans of the Year award, which is sponsored by Microsoft. It's a public Internet poll in which I might even win, either in the EU Campaigner of the Year or the overall European of the Year category, and I've already vowed to give the prize money to the FFII, which fights against software patents. If you feel like supporting this Microsoft money to anti-patent group effort, please vote for me there in both categories (Campaigner and the long overall list at the end). Don't have to be European for that. Thanks. End of campaign message :-)

Re:Good news and mostly bad news

[vidarh]

Just voted for you. But any thoughts on who else to vote for in the other categories? I'm sure lots of people would like to avoid voting for any pro-patent people in the other categories, or reward any other candidates that have been supportive of the anti-software patent movement.

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 ones listed have stated an opinion either way.

Also, Michel Rocard is a candidate for MEP of the year, and since he helped push quite reasonable modification attempts to the directive he might be a good choice - do you think any of the other MEP's are better alternatives? And why?

For Stateman of the year, while I'm sure people have lots of other reasons to pick a candidate, which of these government do you consider the most receptive to the anti-patent agenda?

And are any of the "diplomat of the year" candidates known to support either side?

Any of the companies represented with Business leader of the year candidates known to be particularly for or against software patents?

Vidar

Re:Good news and mostly bad news

[FlorianMueller]

Thanks for your vote! You're right that we have to publish a complete set of voting recommendations. That will happen next week.

Let me publish some recommendations here now:

• Commissioner: Dalia Grybauskaite, Budget. All others have ties to pro-patent forces, especially McCreevy was remote-controlled by Microsoft.

• MEP: You're right, Rocard is the way to go.

• Statesman: Zapatero is best because his government was the only one to cast a No vote against the EU Council's proposal for software patents (others abstained, which is technically the same in the Council as a No, but a weaker message). Other candidates like Juncker, Blair and Schroeder were pro-patent.

• Diplomat: Marc Otte (Middle East rep) seems a safe choice.

• Campaigner: That's my category, and actually it will probably be harder for me to win there than the overall European of the Year award (since I have the most prominent competitors in my category, and since eveyone is forced to choose one person per category, many will just pick those who they know).

• Business Leader: No particular risk, I recommend the British Airways guy.

• Journalist: No preference. If you have no better idea, vote for El País guy.

• Achiever: Ellen MacArthur or Ian Tomlison.

• Non-EU Citizen: Marinich is imprisoned and Yushchenko's health was damaged (and his face disfigured) by the secret service. Those two deserve most of our compassion and support.

• Overall European of the Year: That's the grand prize. Every candidate including me is running there as well. If I were to win it, I'd get to make an acceptance speech with an anti-software patent message in front of various of Europe's most powerful politicians :-)

Re:Good news and mostly bad news

[vidarh]

Yay :) I hit the mark quite well with in all categories then, and managed to avoid the bad guys...

Re:Good news and mostly bad news

[idlake]

Don't let us gloat over the damage to Microsoft. The Eolas patent is a threat to large parts of the Internet as we know it.

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 good news. It will probably also help the usability of many sites because embedding applications is, ultimately, not a good idea.

Re:Good news and mostly bad news

[Anonymous Coward]

Anyone considering voting for Florian should read this:

On August 22, 2005, Florian Mueller distributed a press release (Linux trademark issue: EU anti-swpat campaigner supports Linus, is concerned over anti-IP positioning of open source) on behalf of nosoftwarepatents.com critiquing what he considered to be "anti-intellectual property positions" in the open source/free software movement. Among those criticized was EFF's defense of the BNETD project, which was sued in U.S. courts by Blizzard entertainment for creating an open source interoperable server that worked with Blizzard games. Mr. Mueller chides the EFF for rushing to the aid of "piracy-enablers" and making it look like software patent critics are "against copyright."

In the interest of correcting the record and full disclosure, we'd like to note two things. First, the Blizzard v. BNETD case is anything but "against copyright." The defense of the case is based entirely on the right to reverse engineer and create interoperable software embodied in the Fair Use Doctrine of U.S. copyright law under Title 17, Section 107 and Section 1201(f) of the Copyright Act. It is hard to understand how one could be "against copyright" when one is relying on the Copyright Act as the defense to Blizzard lawsuit.

Second, it is also worth noting that Mr. Mueller is anything but a disinterested party in this fight. In fact, he has extensive ties to Blizzard Entertainment and is listed as a contributor to numerous Blizzard games including Starcraft, Diablo, and WarCraft II: Tides of Darkness. While EFF applauds Mr. Mueller's work on software patent policy, his failure to disclose these facts and failure to accurately describe the Blizzard v. BNETD case must call into question his credibility on this issue.

Re:Good news and mostly bad news

[slavemowgli]

Embedded media (particularly, Flash) *is* a large part of the Internet as we know it. And unlike you, I'm not convinced that embedded media is automatically a bad thing, either; I certainly dislike ActiveX for its proprietary, windows-only nature and security nightmares, and PDF (PDF documents on the *web*, that is) for its duplicating of what should be done in HTML and CSS, but Flash at least seems to be doing something that you can't easily do with open standards, and the player is reasonably cross-platform, too.

Of course, like all technology, Flash *can* be abused, but hey, sites without Flash can also have a horrible design - Flash is neither necessary nor sufficient for that.

I don't know about you, but I at least, as a frequent visitor of sites like http://newgrounds.com/ for example, would be rather disappointed if Flash went away or if you had to pay for the player due to licensing fees extorted by Eolas.

Re:Good news and mostly bad news

[Rayban]

You've got my vote.

Re:Good news and mostly bad news

[idlake]

Abolishing embedded media isn't the same as abolishing the media. Flash, video, PDF, ActiveX, etc. are much less of a problem when they're not embedded. Security, compatibility, and UI problems arise when they are embedded inside the hypermedia document, as covered by the patent.

As for Flash in particular, I use FlashBlock, so I need to click on it explicitly to see it. I rarely need to click on Flash at all, and when I do, it's usually something that could have been done just as well in either JavaScript or MPEG.

AJAX?

[SuperKendall]

Not sure but if it covers Flash, why not Javascript and AJAX apps? That's the scary bit.

Re:AJAX?

[idlake]

I may recall the patent completely wrong, but I think it specifically talks about extending browser functionality by embedding external applications or plug-ins. If the functionality is fixed and built-in, then the patent may not apply. I suspect that it is hair splitting like that that let the patent survive reexamination, but that also means that it needs to be interpreted narrowly.

Re:AJAX?

[fishfinger]

So does this mean the patent does not apply if the browser starts the application in a separate window, and not embedded in the browser window?

Re:AJAX?

[dkf]

I'd be startled if that was covered. Invoking external viewer apps was a common technique used in the first versions of Mosaic, and which definitely predate the file-date by a long way. It was probably common even before the graphical web at all, but I didn't work at a place with IP-based networking back then...

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 patent doesn't cover it.

Is the THE plugin patent or only one of many?

[UnapprovedThought]

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 what MSFT will be most interested in, as they depend so heavily on browser-embeddable apps. It may be cheaper for them to simply buy out whoever owns the patent if they can. Then, of course, if they can, they can turn around and use it against everyone else.

If they can't, I wonder how the eminent domain precedent will play out in allowing a backdoor into taking another company's (or a university's) patents when they don't want to sell? What's the limit? Can someone replace a university campus with a walmart if they want to, because of not enough revenue? It would have been an interesting question for Mr. Roberts, who, incidentally, was recently confirmed and so will be helping to decide the MSFT case that is currently queued up.

Felony Bribery?

[Anonymous Coward]

Well, the next obvious step is to closely examine the bank accounts of all the Patent Office bureaucrats involved to find out how many of them have recent, unexplained large cash deposits. I have trouble explaining their decision in any other way.

European awards for NoSoftwarePatents.com

[Christian Engstrom]

One Award Won

Last Monday, the FFII and NoSoftwarePatents.com jointly won the CNET award for Outstanding Contribution to Software Development 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 also have a chance of winning another award in recognition of all activists who have spent countless hours on making the swpat victory happen.

The founder of NoSoftwarePatents.com Florian Müller has been nominated as a candidate for the title "European of the Year" in an open Internet poll organized by The European Voice, a weekly magazine that focuses on EU politics.

If he wins either the big "European of the Year" award, or the category "Campaigner of the Year" where he is also nominated, it would be a nice PR victory for the anti-swpat movement.

Also nominated in the "MEP of the Year" category is Michel Rochard, the former French Prime Minister who championed our cause as rapporteur in the European Parliament, where we won on July 6.

If you want to donate a few mouseclicks to the fight against software patents, you can go to and register your vote. Only one vote per person.

Note that you have to vote in all the categories, or your vote will be disqualified. For the most part it doesn't matter who you choose in the other categories, but there are a few bad apples (from an anti-swpat perspective), so here are some suggestions. But it's Campaigner, MEP, and European of the Year that are the important ones.

1) Commissioner of the Year:
Don't vote for Charlie McGreevy, who is the commissioner who tried to ram software patents down Europe's throat.

2) MEP of the Year:
Vote for Michel Rochard, who won for us in Parliament.

3) Statesman of the Year:
Avoid Blair, Schröder, and Juncker because of how their respective governments behaved over the directive (especially Juncker, Luxembourg). This leaves the candidates from Italy, Poland or Spain to choose from.

4) Diplomat of the Year:
Don't vote for Nicolas Schmitt, who is part of the Luxembourg government that handled the swpat issue so disgracefully and anti-democratically during the Luxembourg EU Presidency.

5) Campaigner of the Year:
Vote for Florian Müller, NoSoftwarePatents.com

6) Business Leader of the Year:
Pick one.

7) Journalist of the Year:
Pick one.

8) Achiever of the Year:
Pick one.

9) Non-EU Citizen of the Year:
Pick one.

10) European of the Year:
Vote for Florian Müller, NoSoftwarePatents.com
Although one could argue that Michel Rochard would be just as worthy from our perspective, I think it sends a stronger and clearer message if one of our activists wins the award, rather than a politician that is involved in many other issues as well. As it would be very damaging to our chances of winning the most prestigious of the awards if the anti-swpat vote is split on two candidates, my recommendation is Florian Müller only.

For more information about the nominees, see the presentations at the award site here. The poll closes on November 11, and the award will be handed out at a gala dinner hosted by former EU Parliament president Pat Cox later that month.

external display or built-in functionality is OK

[idlake]

I looked it up again. The patent is entitled "Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document", and that's the way the claims seem to read, too.

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 yourself.

not worried

[e**(i pi)-1]

I'm not so worried because

• If the patent gets enforced, browsers can not display a plug-in directly but must use external applications. Users have to go through an additional step, each time a website uses a plug-in. Many get annoyed. Browsers like Firefox or Konqueror can no more be distributed in which plug-ins are workable, but each user with access to the source code can remove the restriction flag and recompile the application and the plug-in. Plug-in creators will always distribute the source code of the plug-in, where the Eola flag can be removed.
• It can be of advantage to open an external application instead of using a plug-in. I personally prefer for example to see Real video content in the external player, where I can resize the application, and where things usually work. Also flash content could by default be shown in an external player.
• The patent says: "...execute an embedded program object. The program object is embedded into a hypermedia document much like data objects." What is embedded? I could imagine to display content in an other application in such a way that the user can not distinguish it from a real plug-in, but where technically, the application is not "embedded in the document" but runs in a second window, with dimensions and locations coordinated by the browser. The user does not notice a difference.

This is GOOD!

[10Ghz]

No, not because we hate Microsoft or something. But cases like this might, just might make someone else besides geeks and techies think "you know, maybe these software-patents aren't such a good idea after all?"

first-to-file

[idlake]

First-to-file doesn't affect prior art. What it means is that if there are two competing patent claims, the first to file wins. That's much saner than the current system.

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 pretty clear: if you don't publish your idea and you don't patent it either, you shouldn't have any rights to claim ownership of it.

Re:first-to-file

[GuyWithLag]

Nope. It just says that you are not entitled to you own little private monopoly on the idea.

Re:first-to-file

[Anonymous Coward]

That's what "ownership" means. Furhtermore, somebody else who does patent it, does get ownership, so he can exclude you from using it even if you invented it first. That's the way patent law is supposed to work, and, if we are going to have patents, that's how they should work.

A diverse range of winning Pioneers

[Anonymous Coward]

http://www.eff.org/awards/pioneer/

Pioneer Award Winners for 2005 ..

Drazen Pantic
Media and Tech Director, NYU Center for War, Peach and the News Media

Re:Little surprise here?

[WillerZ]

They're our old patent-wielding overlords in this case.

Where is Eolas' product?

[Morgaine]

A patent is meant to provide a short-term monopoly so that the patent holder can *PRODUCE* his invention without immediately losing out to competitors on publication of the details. It has no other purpose.

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 known better than to engage in the game, instead of vigorously showing that the game is utterly nonsensical and ridiculous when applied to this area, in which W3C's technical expertise is not contestable by a mere USPTO examiner.

Re:Where is Eolas' product?

[Minna Kirai]

A patent is meant to provide a short-term monopoly so that the patent holder can *PRODUCE* his invention without immediately losing out to competitors on publication of the details.

Well, not exactly. They are protected to either produce it themselves, or more likely pay someone to sell authorized implementations.

If, hypothetically Eolas had invented something worthwhile, then Microsoft would not have been able to to program the modern IE until the patent was explained to them, and it would be valid for Eolas to get a cut of every Windows sale.

But in reality, their invention was nothing great, and it was speedily rediscovered by every web browser team who found themselves facing the same problem. The idea was too obvious to deserve a patent at all (as most software patents are).

Key question for USPTO officers

[Morgaine]

Q. "Would an average software developer with an average education and average experience in computing ever need to refer to Eolas' patent on plug-ins, either directly or indirectly, in order to introduce optional functionality into an application?"

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:Key question for USPTO officers

[Chuckstar]

There is no magic to invention. Any invention can be replicated by another inventor without referencing the patent, given enough time, effort, and capital. The test you give would fail for every patent.

Q. "Would an average [electrical engineer] with an average education and average experience in [electricity and magnetism] ever need to refer to [Bell's] patent on the [telephone], either directly or indirectly, in order to introduce [a device to transmit sound over wires]?"

A. "No."

So the telephone shouldn't have been patented?

Re:Key question for USPTO officers

[Anonymous Coward]

The telephone is not even remotely obvious to an engineer fully cognizant of electricity, pressure-variant conductivity of carbon granules, and electromagnetism.

It was a very worthy and insightful systemic invention that does not fall out automatically from the combination of its parts.

Re:Key question for USPTO officers

[Chuckstar]

I didn't say "falls out automatically", I said that someone knowledgeable in the field could invent something similar given the basic outline of the invention.

My conspiracy theory

[Anita Coney]

Microsoft wants this patent to remain valid. The judgment is NOTHING compared to the boatload of money it's sitting on. Microsoft has willingly lost FOUR BILLION on the Xbox. Don't you think they'd be willing to give a paltry 500 million to control a key browser patent?

Microsoft will simply obtain an exclusive license to the patent locking out all other browsers.

Back on topic -

[ehack]

As long as the US allow software patents, some filings will actually be genuine patentable innovations, which will then meet stringent tests. I mean, the USPTO may be delivering lots of bogus patents, that would be invalidated on any challenge, but there are forced to be a few filings that really meet the criteria of being deserving for protection.

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 thought he had found something genuinely innovative.

This patent is WAY to broad..

[Thomas Charron]

After reading the patent.. SEVERAL times.. I've come to the conclusion that this patent covers every browser on the face of the earth.

    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

[cortana]

Won't they get it back if they buy Eolas?

PUBLICLY OWNED PATENT

[Anonymous Coward]

I see things a different way. This patent was researched and applied for useing the TAX money from California residents. Therefor the patent should belong to the citizens of California. It has become the norm today for YOUR TAX DOLLARS going into research and delvelopment at colleges, universities and grants to private businesses. This all comes FROM YOUR TAX DOLLARS yet they get to walk away with a potential windfall of millions or billions in a patented product, service or business process. There should be a class action in california to recoup the tax monies spend on such research that is clearly not what your TAX DOLLAR are collected for. YOUR EDUCATION!!!!!!FUCKERS!!!!!

WOW!

[BitterAndDrunk]

An anonymous coward being pedantic. How ironic!

Oh wait, no it isn't.

Walk them off the plank!

[Anonymous Coward]

What?! The EFF doesn't oppose software patents? Down with the EFF! We must oppose the EFF, those bastards!

Re:As long as they don't attack Open Source

[Dare nMc]

wouldn't it make even more sense for microsoft to pay some other company to wield patents against their competitors, and thus be limited from the PR backlash, and any anti competitve lawsuit back-lash.

or is that too hypethetical (not like micrsoft paid SCO to fling lawsuits, they just helped bankroll the company after the lawsuit war was started.)

You're just wrong

[RealProgrammer]

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.

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.

I see a huge conflict between trade secret law and patent law under first-to-file. The proposed changes will only benefit the patent lawyers and other system parasites.

Re:You're just wrong

[Krach42]

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.

Actually, this could be a good thing. Situation: Company A invents something then holds onto it, but doesn't file it, and just sits on it (doesn't publish anything about it.), then Company B comes out and invents the same thing, and files for it, and publishs about it.

In first-to-invent, Company A can break Company B's patent, even though they never told anyone about the patent.

In first-to-file, Company A cannot break Company B's patent (though they can potentially continue to use it internally as they have been) because they didn't publish it.

Now, let's look at what patent law should be accomplishing. The idea behind patent law is to make inventions PUBLIC, and in exchange for this, the inventor is given a temporary monopoly to exploit that invention. The net sum is that inventions are not lost. If some company patents something there is no way that that invention can be lost. As such, the goal here is to make inventions PUBLIC, so that everyone can eventually benefit from it.

Thus, first-to-file benefits in the situation. Assuming in all cases that prior art will be protected, and someone can produce a technology, release it free to the public domain, (freely publish, but not patent) and then no one can patent it.

If first-to-file accomplishes those goals better than first-to-invent, then I'm up for it being better. In fact, the GP post satisfies a lot of questions for me.

Meh...

[Anonymous Coward]

Firefox can just start shipping with the FlashBlock extension pre-installed. Problem (and violation) solved.

voting Florian won :-) (Re:Good news and most

[Anonymous Coward]

Looks like the voting is over and Florian Moeller won.

Congrats Florian.

Patent reform bill would nearly abolish prior art

[waterbear]

One poster (lheal) wrote
Congress is too busy worrying about baseball players taking steroids to actually fix the [patent] system.

And another (pgpckt) riposted
Are you serious???? Have you not heard of the Patent Reform Act of 2005, H.R. 2795 ? [links were given]

Hold on a moment! When you read through all the cruft, there is a _very_ big sting in this 'patent reform' bill. It comes from the "objective prior art rules requiring patent-defeating information to be publicly accessible" -- that's a quote from the introduction to the 'coalition print' of the bill (see IPO website linked by earlier poster pgpckt).

This will be, in reality, a salami-slicing operation on the rights of the public not to have old public knowledge turned into new private patent rights.

The bill goes even further than the introduction gives a hint, and it says:

  --- that pre-existing subject matter will only count as prior art against a patent if it is "reasonably and effectively accessible", and also
  --- that pre-existing subject-matter won't count as reasonably accessible nor as prior art unless skilled persons can 'gain access' to it 'without resort to undue efforts',
  --- and it also won't count as 'effectively' accessible unless 'persons of ordinary skill' are able to 'comprehend the content of the subject matter without resort to undue efforts' (see page 4 of 'coalition print').

Effectively this change will cut down quite drastically on the amount and the quality of the prior knowledge (prior art as currently understood but not in future!) that can be cited against a patent. It redefines 'prior art' in a way that exactly fits the spirit of 'newspeak' in '1984', George Orwell's dystopia-novel written in 1948:

Something could be prior in date, and could be relevant technological art, but we won't be able to call it prior art, because the term 'prior art' will in future already be legally 'occupied' instead by a futile and impotent idea, something like 'simple prior art that doesn't need any appreciable search to find it and not much knowledge to understand it'.

This legal change will multiply the arguments available to patent owners to dismiss the significance of what we now call prior art. This alone will add to the already-bloated cost of patent proceedings. The level of 'ordinary skill in the art' will continue to be able to be assessed by a court or by the patent office, potentially as being quite low. So, not much of the really important prior art in technically complex cases is likely to be found both 'effectively accessible' and comprehensible 'without resort to undue efforts', and nearly every patent may be unobvious over what is left of the prior art after the salami-slicing.

IMHO, the very last thing that the world needs (or the US needs), is to have the prior art redefined and made narrower than at present, so that invalid patents will just be made valid by decree of Congress, even though they cover old knowledge and old technique. But it is on the way to happening now.

Maybe indeed this will 'fix' the patent system -- but not exactly in the sense that the earlier posters meant, I suspect. :(

-wb-

A failed re-exam is bad for everyone

[waterbear]

The patent can be challenged by every schmoe accused of infringement as long as he hadn't sued or been sued before.

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 disputes about validity towards the direction of being an open-and-shut case.

In that way, the failure of the re-exam harms everybody interested in freedom to use this technology.

-wb-

Re:Patent reform bill would nearly abolish prior a

[pgpckt]

I disagree with your interpretation of the meaning of the provisions you are citing. However, I am not a lawyer, and this is not legal advice.

    --- that pre-existing subject matter will only count as prior art against a patent if it is "reasonably and effectively accessible", and also
    --- that pre-existing subject-matter won't count as reasonably accessible nor as prior art unless skilled persons can 'gain access' to it 'without resort to undue efforts',
    --- and it also won't count as 'effectively' accessible unless 'persons of ordinary skill' are able to 'comprehend the content of the subject matter without resort to undue efforts' (see page 4 of 'coalition print').

In current patent law, the #1 most important thing is Enablement. From 35 USC 112,first paragraph:

The specification shall contain a written description of the
invention, and of the manner and process of making and using it, in such
full, clear, concise, and exact terms as to enable any person skilled in
the art to which it pertains, or with which it is most nearly connected,
to make and use the same, and shall set forth the best mode contemplated
by the inventor of carrying out his invention.

Thus, a patent MUST provide 1) written description, 2) Enablement, 3) Best Mode. Best mode is about to go away under the reform act, but Enablement isn't going anywhere.

Enablement is the basic quid pro quo of patent law. We give you a monopoly for 20 years, but only if you disclose the invetion. The invention is required to be disclosed such that a "person of ordinary skill in the art" can pratice (make) the invention.

The provisions you cited, and I quoted above seem totally consistent with this standard, and consistent with the prior patent law. Prior art has a more narrow definition in patent law then in common usage. If the prior art is not enabling, it really doesn't count under the current law anyway. Prior art must either be under 35 USC 102 (called an "anticipation" , that is, that there is prior art somewhere that is exactly the same as the patent the person they are trying to get) or 35 USC 103 (for "obvious" inventions. Either multiple references from 35 USC 102 are combined to make the invention [instead of just one] or the patent application is an "obvious" derivitave of what is already in the prior art).

"Reasonably accessible" and "undue efforts" are about disclosure. "Persons of ordinary skill" is the standard that now exists and has plenty of case law making clear what this means, and is not as ambigous a term as you suggest. "Comprehend the content of the subject matter without resort to undue efforts" is about enablement.

These changes are consistent with the current law IMHO.

Follow the money trail of contributions

[WillAffleckUW]

and count up who got how much and that's how you will find out what will happen with most patents in this corrupt regime.

Yes, years ago this would have been paranoia, admittedly. But now, sadly, it's just the way they "do" business.

Sounds like AJAX to me

[SuperKendall]

If you consider the "application" is really on the server, and that AJAX is funneling objects from that server-based (external) application to embed within your "hypermedia" web page that sure seems like it would apply to me!

More specifically it makes me wonder if providers of AJAX libraries are not at risk.

Re:Sounds like AJAX to me

[idlake]

I don't see any grounds to support your interpretation. But I suggest you read the patent and analyze the claims, and then let us all know about the results.

Re:Patent reform bill would nearly abolish prior a

[waterbear]

I disagree with your interpretation of the meaning of the provisions you are citing. However, I am not a lawyer, and this is not legal advice.

Well, you are pretty free with legal interpretations, and I even wish you were likely to be right, but I am afraid they are not sound interpretations. I don't want to overload this post. I have practised patent law for over 30 years. What is coming seems to me a rape of what remains of justice in the patent system, and I have a sense of relief, even though mixed with regret, that I am just about to retire.

Unfortunately the new provisions are not linked, as you suggest they are, to the question of enablement: they will be independent and new statutory words. They will not be 'about' enablement, or indeed about anything other than what they mean themselves. This is how they will create independent and new legal criteria. And what they mean is all in the direction of cutting down what will be admissible as prior art.

What will you think when a patent is granted for a technique that is publicly known, but buried away like a needle in a haystack, in some part of the GNU/Linux operating system? Today, the public prior example of the technique would be prior art against later invention, but when the reform bill is passed, it can be chopped away. Hard to find? Hard to decipher when found? The arguments will expand long and expensively. No sir, that arguably won't be prior art any more, and while one case may go one way, and another case may go another, the loser will be the public and any assurance of its continued freedom to use what was publicly disclosed and not patented.

I wish that your optimistic expectations were likely to be right. But maybe you never heard the expression 'The more words there are, the more words there are about which doubts may be entertained'. Where there are more doubts, there are certainly more opportunities for expensive legal arguments, and the party without the long purse will be still further disadvantaged.

-wb-

Re:As long as they don't attack Open Source

[ComaVN]

Yes, but this increases the price of Eolas by the same amount (plus whatever the shareholders think they can make by going after the other browsers)

Re:As long as they don't attack Open Source

[cortana]

Oh yeah. Sorry for being dumb there. :)

Re:Patent reform bill would nearly abolish prior a

[pgpckt]

I am a law student and recently passed the US patent exam. I have yet to get my registration number, but I am obviously excited. I am now taking my first courses in IP law and am writing my law review on, you guessed it, the Patent Reform Act of 2005.

That being said, I obviously have nowhere near the education and experience in this field that you do. I respect your professional opinion. I hope you have had a fullfilling career and that you enjoy your retirement.

While these words are independent and not expressly tied to the old sections, the fact that the same words are being used would normally mean a court would interpret them the same way. Such is the intertexual argument. The committee is still arguing over the wording and details, so maybe when the committee report is released, we will have some idea what the intent is. Intent, as you know, is the main tool for legal interpretation in statutory cases. If the committee report says these words mean something else, that will be a strong influence.

As a soon-to-be Patent Agent and budding Patent Attorney, I am very optimistic about these changes and what they mean to the patent law. It's interesting in particular that you as a retiring attorney are skeptical and I as a starting soon-to-be attorney am optimistic. Perhaps this is linked to my lack of experience, or perhaps to the cliche youthful idealism that is supposed to be crushed out of me at some point in the future.

As for your hypothetical regarding the Linux OS, I think that since the Linux OS is obviously enabling (it works) that it will continue to count as prior art, and even the deep, dark parts of the core would be considered avaliable to one of ordinary skill in the art. I could be wrong of course. With the opposition proceedures being created, a lot more of these issues will be litigated before the USPTO then the CAFC. However, all new laws are always tested by lawyers seeking to leverage the unknown of a new law to the clients advantage. That's the way the profession works (or so it appears). These leverage attempts however do not discourage me, as I think that the interpretations of the new provisions will be consistent with the current interpretations.

As for your comment:

'The more words there are, the more words there are about which doubts may be entertained'. Where there are more doubts, there are certainly more opportunities for expensive legal arguments, and the party without the long purse will be still further disadvantaged

You are certainly correct. One thing Congress has managed to do well is to greatly expand the number of words in the patent law and the copyright law. What is it now, like 3 times the length or something? Money has always been an issue in law. At the same time, the USPTO proceedures should be cheaper then the federal courts, so maybe that will help the little guy a little. But, money does matter, which is why it is nice to have IBM et al on the "good side" at the moment :)

Re:Patent reform bill would nearly abolish prior a

[pgpckt]

Also, not to put too fine a point on it, can you get me an IP summer intern job? Know anyone hiring? :)

Re:Patent reform bill would nearly abolish prior a

[waterbear]

I am a law student and recently passed the US patent exam.

Well I certainly wish you the very best of fortune in your coming professional activities. You will certainly find out soon enough how questions related to money make it easier to give certain kinds of advice, and harder, under economic pressure, to give certain other kinds of advice -- even when legally appropriate. I hope you will notice how this effect is often not in the interests of justice and of the public (which includes all clients at least some of the time) and sometimes not even in the interests of the clients. May I also mention a hope for you that you do not lose the idealism that you start off with, and continue to aim for justice as well as results for your clients.

With best wishes

-wb-

invitation to a thought experiment

[piotru]

Situation A: Everyone knows about Eolas patent from start. We don't have browser plugins. The web experience is miserable.
Situation B: Nobody knew and everyone developed obvious ideas. We have browser plugins and can enjoy various media on www.

I reiterate, that the difference between A and B is a good estimate of damage inflicted on public interest by patents.

That is the amount of technology that was created in absence of enforced patent.

Thanks for the info

[Steeltoe]

Thanks. I didn't know the site was this famous. I just found it by a Google-search, and found the arguments very much in-line with my impression. Like, the way every pro-patent lobbyist always say they are against software patents, but in secret they are lobbying for "computer-invented inventions", claiming that's a different thing! It's not, and we as the technical experts know better, and we need to get our voice heard! Like RMS is saying in his speeches, just because patents works okay for one part of business, doesn't mean it is suited for every part of life.. no, we should discriminate the patent-laws according to the field in question, wether it will have a positive benefit or not.

I don't like exclamation marks, or having to call "lie", which we should be very careful to use because it drags us down with it.. but what has happened, and how big money runs things, is unacceptable.

I did vote, and it felt good. It doesn't mean wether we win, but at least I did one thing for it today. Next day I can do something else. Just think how much power we have as individuals today, by telling the truth!

OLE wasn't limited to LANs or Local machines.

[bobwyman]

Doyle claims that the big difference between OLE (Object Linking and Embedding) and what he claims to have invented is that his system allowed one to pull the active objects over the Internet rather than just local machines and/or Local area networks. However, OLE was not, in fact, limited to local machines and LANs. There were a variety of tools that allowed the Microsoft file system (NETBIOS, etc.) to be extended over the Internet and other WANs. Thus, his claimed distinction is false.

In any case, the argument that accessing data over the Internet is somehow different from any other kind of data access is simply silly. This is a false distinction that could only convince a lawyer who is not familiar with the field.

bob wyman