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?

[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.

wtf?

[wingman358]

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

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

[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

[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

[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.

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

[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

[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

[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

[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.

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

[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.

Slashdot EZ Post TM

[Hack Jandy]

Slashdot EeziPost (TM) MK I

[ ] Another: [ ] Dupe [ ] Slashvertisment [X] WTF [ ] $editor is a dork

[X] Frist psot [ ] link to GNAA [ ] Link to goatse [ ] $random_drivel

[X] I Haven't RTFA, but... $random_opinionated_comment

[ ] Slashdotted already!. I bet their server runs on $topic_item too

[ ] Soul_sucking registration required

[ ] Mod Parent [ ] up [ ] Down

[X] Fsck: [ ] SCO [X] Micro$oft [ ] DMCA [ ] DRM [ ] MPAA [ ] RIAA [ ] Google [ ] Bush [X] You all

[ ] I for one welcome our new $topic_item overlords

[ ] Imagine a beowulf cluster of those

[X] In Soviet Russia, $topic_item owns you!

[ ] Meh!

[ ] Netcraft confirms $topic_item is: [ ] dead [ ] dying

[ ] But have the inventors thought of what will happen if $random_amateur_insight

[X] Once again the USA is clamping down on my [X] Amendment rights.

[ ] You insensitive clod

[ ] But people who download music from P2P networks are more likely to buy the album

[ ] Cue DVD Jon-type crack in 3..2..1

[ ] Torrent, anyone?

[ ] Here's a link to a patch: $random_linux_distro_url

[X] Profit!!

[X] Still no cure for cancer

Re:Slashdot EZ Post TM

[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.

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,

[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.

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.

Hey Eolas!

[Chordonblue]

Party in Middle Earth tonight! You're buying!

Signed,

Frodo and Gimli

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.

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.)

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

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.

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.

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".

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.

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: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.

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.

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

[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 :-)

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.

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.

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.

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.

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.

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-