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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."
Nope. Nobody has deployed a non-infringing solution as of yet. Just about every browser (except maybe lynx) infringes on this.
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.)
Are you serious???? Have you not heard of the Patent Reform Act of 2005, H.R. 2795 ?
http://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.
http://www.ipo.org/template.cfm?Section=Patent_Re
This is making major MAJOR changes to patent law (prior use rights, first to file instead of first to invent, creation of public opposition proceedings, publication of all patents, etc, etc, etc.) in 10 or 12 MAJOR areas of patent law.
And this thing is going to pass. It has wide congressional bipartisan support and the support of the all the major players. And it is a good thing for consumers.
Yikes, get your facts straight.
Lawrence Lessig is my personal hero.
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.
What?
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.
http://www.welton.it/davidw/
In one case of "submarine patents", the court ruled them unenforcable. See1 31027544
http://www.groklaw.net/article.php?story=20050913
It was, however, a rather extreme case, so I am not sure if the same reasoning would work in Eolas vs. Microsoft
C - the footgun of programming languages
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.
Christian Engström, Former Member of the European Parliament 2009-2014 for The Pirate Party, Sweden
Let me publish some recommendations here now:
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.
C - the footgun of programming languages
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.
"Little does he know, but there is no 'I' in 'Idiot'!"