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Supreme Court Rejects Microsoft Eolas Appeal
mixmasterjake writes "The U.S. Supreme Court has decided not to hear a Microsoft appeal in the software company's ongoing Web browsing patent dispute with the University of California and Eolas Technologies. The dispute arises over the Eolas patent for 'a system allowing a user of a browser program ... to access and execute an embedded program object.' From the article: "With today's decision, the Supreme Court decided not to hear Microsoft's argument relating to how damages in the case should be calculated. Microsoft had been asking the court to reject a previous ruling that damages should be awarded based on Microsoft's U.S. and foreign sales, saying that the Eolas patent should only apply to U.S. products. The Supreme Court did not give a reason for its rejection of Microsoft's appeal."
Both of which routinely suggest actions you can take to try to turn this thing around.
Ars has better coverage.
It's a bit confusing, but as I understand things, this is the story: Eolas were awarded big damages against Microsoft based on their browser plugin patent. This patent was overturned in March 2004, which means Microsoft no longer had to pay those damages. Micosoft's appeal to SCOTUS was against those damages that it doesn't have to pay any more. So, I imagine the SCOTUS were like "WTF?" when they declined to hear the case.
Microsoft's not totally insane, though, because the patent has been reinstated, so MS and Eolas will be going back to court, and MS might lose again and have to pay money again. So they were looking for a precedent to keep a lid on those damages which they might get.
Repton.
They say that only an experienced wizard can do the tengu shuffle.
>there doesn't seem to be any prior art, much less a staggering amount.
Actually, there are several significant pieces of prior art. For various reasons, the USPTO and courts have decided to overlook each of them. Just because you aren't aware of them doesn't make them nonexistant. Some of us were there when all this happened, and know what a travesty this shakedown is.
Eolas is a scam, on the order of an SCO. (Hey, did we just coin a universal unit of business scam magnitude?)
-- There is no truth. There is only Perception. To Percieve is to Exist.
The Chief Justice doesn't choose cases for the Court. A "yes" vote from any four justices is enough for the Court to hear the case. The parties petition, and 4 justices have to vote yes for a case to be granted cert.
The Chief Justice does, however, lead the discussion leading to decision, and, if in the majority, choose who writes the opinion. So, the Chief is not without sway, and usually leads like-minded judges.
The earlier post which said it's the best job ever was half right: you might still have to hear a case if you don't want to, but you never have to write a sentence unless you take the opinion for yourself.
And, a little more knowledge for the curious, Chief Justices usually try to put a 'theme' to their tenure. For example, Earl Warren's was "Person liberty" and Rehnquist's was "States' rights" or "States' dignity." It'll be interesting to see where Roberts goes.
IANAL...y.
I'm no lawyer, so I may be wrong.
You probably know of one patent, the Eolas "browser plug in" patent, which threatens to kill every known web browser out there. And you probably know that Microsoft is fighting the patent, because it's being sued. And that everyone went about it the wrong way.
So (given I have not even read the actual patent details) I thought "wait, there's this function in Unix called 'dlopen' that is commonly used in Netscape and Mozilla to load in plugins. It's even described that way. Where does it date back to?"
A google search results in a Nov 16th, 1995 Sun Microsystems document describing a bug in SunOS 4.1.4's dlopen() call.
The patent was awarded in 1998. dlopen() existed since late 1995, at least two, if not three, years before the patent.
Whoops! I belive we got prior art from Sun! Quick, someone sue the Patent Office with this evidence!
--
# Canmephians for a better Linux Kernel
$Stalag99{"URL"}="http://stalag99.net";
The other test for obviousness (the one that is somewhat sane) is apparently left for the courts to decide after the patent is granted.
You might also be interested to know that our patent system originated in 15th century England, and had nothing to do with novelty, non-obviousness, or prior art and everything to do with exclusive, state-sponsored monopoly (see A Brief History of Idea Monopoly for details on how such commonly manufactured items as soap, salt, glass, and sailcloth were granted patents).
The striking thing here is that our current patent system is starting to look a lot like the old 15th century English one, where "low quality" patents are granted willy-nilly, punishing the general public by levying a sort of tax on everyone except the owner of the patent. In other words, it seems more and more to have everything to do with exclusive, state-sponsored monopoly and nothing to do with protecting innovation and inventors.
I am a patent attorney. I am posting this anonymously because, frankly, I enjoy earning a living and I accept business from corporate clients. If you believe that my anonymity is hypocritical, then you're perfectly free to feed your own children lightly cooked dirt, but I'm comfortable with the cognitive dissonance.
Scary as it is, Microsoft and other large software companies have patented software ideas and algorithms in order to make sure that no other company would go and patent the same idea and use it against them.
Scary as it is, the word "gullible" is not defined in the Oxford English dictionary.
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Or maybe it is. My point being, someone has recited this story, and you're one of those sheep that continues to make the mistake of believing it.
35 U.S.C. sec 102 and sec 103 provide that ANY "printed publication" can serve as prior art that renders a proposed claim unpatentable due to a lack of novelty or a lack of non-obviousness. Therefore, you do not need to obtain a "defensive patent" to prevent a competitor from patenting that same subject matter. You merely need to publicly disclose that subject matter.
Even if you believe that this is not sufficient, because the USPTO is just that incompetent (only an examiner has the qualifications to judge this, since your elected representatives created the laws and regulations that dictate how they must perform their jobs), you can prepare and file a patent application as a Statutory Invention Registration, which is published, indexed, and catalogued just like a patent, but which cannot be used offensively like a patent, and which notably does not require the additional attorney fees and government fees associated with patent prosecution, issuance, and maintenance. There is no rational reason not to publish your software idea, or to file an SIR disclosing your idea, unless you are after one thing:
Scary as it is, Microsoft and other large software companies have patented software ideas and algorithms in order to make sure that no other company would go and patent the same idea and use it against them.
Now, disregard the bold text to read the actual story.
Roberts who answered very little in his Senate Confirmation hearings, did mention he was open to the idea of either getting rid of the 'cert pool' concept and/or increasing the courts caseload each year.
No they don't.
They have the power to REWRITE the law, but that is not the same as oveerturning the Supreem Court.
I understand the argument you are trying to make, but you're overstating things a bit.