Invalidation of Eolas's Web Patent Claims Upheld

New submitter Ajay Anand writes with news that Eolas's web patents are really dead (the infamous browser plugin patent that forced Internet Explorer to change how it activated plugins). After Eolas sued a number of companies, last fall a jury found the patents invalid; Eolas naturally mounted an appeal. But a panel of judges simply affirmed the jury decision (PDF). A quiet ending to a decade of patent trolling.

Comments

at what cost?

[Anonymous Coward]

So... how much money was spent to make the right decision?

Re:at what cost?

[GumphMaster]

Last I checked it was the State that paid for judges, court officers, court facilities, jury expenses, etc. It matters because tax payer money was expended supporting a series of shameless private money-grabs through through to its (some would say inevitable) conclusion. The time and money expended from public coffers could have better been spent on legal matters of public worth.

Give back the $$ they extorted?

[Anonymous Coward]

Do they have to now give back the money they extorted?

If not, they won.

Re:Give back the $$ they extorted?

[mspohr]

I don't know about these particular "settlements" but typically a patent troll will have a clause in the settlement contract that specifies that even if the patent is invalidated later, the payment is still due.

Re:Give back the $$ they extorted?

[Genda]

Precisely, in fact the entire valid/invalid thing is moot. Because they chose to settle out of court, they are beholden to the legal whims of he with whom they settle. So no matter how egregious the terms and conditions, they are the terms and conditions to which they agreed.

Now a real interesting development happened a little while back, John Fogerty was sued by the current owner of CCR IP, for plagiarizing himself with his newer music (in the early 90s his career took off again when the 20 years of bondage ended and he could make and sell new music that didn't automagically belong to someone else.) In court the greedy bastard that sued him made it perfectly clear owning CCR wasn't enough, that even though he was no longer under contract, he had every intention of keeping John under his thumb for the rest of his natural life and take everything he made for his own benefit. The Judge informed said scumbag that a songwriter sounds like that songwriter because HE IS THAT SONGWRITER... that CCR songs sound like CCR songs and one would only expect that future songs by that artist might have a similar style. The case was crushed.

But here where it get's interesting. Part of the reason nuisance suits have been so effective is that defending them, leave you with a terrible court expense whether you win or lose. John asked the court, can I sue this ass-hat to recover my court costs? The judge said go for it, and John got most of 2 million dollars in court costs back. If these Corporate giants are so inclined, they might want to spank Eolas so hard that their great grandchildren hurt. This would set a very cool precedent to future Patent Trolls, yes, the rewards are great, but if your patent is 99% smoke and you go up against guy with legal larger than the population of Rhode Island, well you might just wanna think twice.

That and start-ups should get together and create Troll Insurance. Bring in the EFF and couple of other heavy hitters and clean this Troll problem up once and for all. By all means, someone infringes on your patent, your personal invention, you deserve recompense. You decide you're going to build a portfolio of bullshit patents to tax society because you're a greedy scumbag, not so much.

Re:Give back the $$ they extorted?

[thomst]

Genda observed:

Now a real interesting development happened a little while back, John Fogerty was sued by the current owner of CCR IP, for plagiarizing himself with his newer music (in the early 90s his career took off again when the 20 years of bondage ended and he could make and sell new music that didn't automagically belong to someone else.) In court the greedy bastard that sued him made it perfectly clear owning CCR wasn't enough, that even though he was no longer under contract, he had every intention of keeping John under his thumb for the rest of his natural life and take everything he made for his own benefit. The Judge informed said scumbag that a songwriter sounds like that songwriter because HE IS THAT SONGWRITER... that CCR songs sound like CCR songs and one would only expect that future songs by that artist might have a similar style. The case was crushed.

But here where it get's interesting. Part of the reason nuisance suits have been so effective is that defending them, leave you with a terrible court expense whether you win or lose. John asked the court, can I sue this ass-hat to recover my court costs? The judge said go for it, and John got most of 2 million dollars in court costs back.

The scumbag in question was Saul Zaentz, owner for many decades of Fantasy Records, in Berkeley, CA. (CCR started as a high-school band called the Golliwogs in El Cerrito,-about a ten-minute drive from Fantasy's studio). FWIW - he spent a large amount of the songwriting royalties he screwed Fogarty out of making the movie Amadeus.

He sued Fogerty over the song, "The Old Man Is Down The Road" - but what pissed him off enough to doggedly pursue the case was "Zaentz Can't Dance" (later changed to "Vantz Can't Dance", after Zaentz filed a defamation action).

It's a VERY personal conflict.

"A quiet ending to a decade of patent trolling"

[93 Escort Wagon]

If only that were true...

Not quite a troll

[rijrunner]

A lot of people are jumping in here claiming patent troll, but I remember enough about where the state of the Internet was in 1993 to feel that he was sincere in these patents. They did release a browser. they did offer licensing.

At the time he started development, there were under 100 total websites on the entire planet. A lot of people were pushing applications development to direct connect to services. For example, If you played internet chess, you opened XBoard, then pointed at a chess server. A lot of others were pushing other application specific services. There were competing paradigms in how things were going to develop. The whole idea of a web browser handling everything was not even close to being universally accepted.

So, he gets a patent. Launches a browser, but after Netscape launched their browser. No real traction with VC's as they were dumping their money into providing the services. The browser tanks, so he offers the tech for licensing. Microsoft among others says no. Then, Microsoft submits a set of patent applications that cover the exact same stuff under different names, then incorporates that tech into IE.

I dunno. Sure. Looks like a troll. He is suing to get money from his invention. But, then again, where Microsoft is concerned, he had a very solid case that they stole his ideas. He met with them, then they declined to license the technology, then they submitted patents covering the same material.

Now, given what we know now, embedded apps within HTML looks obvious, but there were other competing ideas and this one just won out. From our perspective in 2013, this was a clear winner, but when he patented it? Not so sure. And, under current laws of first-to-file, this patent would have held up.

I think the main problem I have with people claiming trolls is this: Whether a product is successful or not - in this case a browser, the IP behind it is still valid. If I invent a widget, but get swamped by companies with bigger bankrolls, that does not mean people can just take those ideas after my business goes under. IP is still property. The *only* reason this was overturned by prior art is because Microsoft decided it was cheaper to void their own patents rather than pay the lawsuit they lost.

Was there prior art? Yes... by a couple months. Did he know about it? There is enough doubt in that to overturn the patent. Was he strictly a troll? Nope. The date here is so early in development of the WWW that there were competing paradigms and multiple approaches being argued and discussed. He legitimately thought this was a valid patent.

Re:Not quite a troll

[rudy_wayne]

If if what you say is true, and I'm not sure it is, you have completely missed the point. Eolas was awarded bogus patents. They did not "invent" anything that should have be patentable.

Re:Not quite a troll

[Jaime2]

The patent was the poster child for "obvious patent". The reason they were so successful in court was that everyone who created a web browser added similar functionality. The standard response to this is "of course it's obvious in hindsight", but the court case shows that someone implemented the idea before Eolas, putting the nail in the coffin of that train of thought.

Re:Not quite a troll

[Sique]

I remember the time too. And I know that embedding objects into documents was all the rage in 1993. And even from systems to systems. CORBA's first spec was published in 1991. OLE and COM were combined into DCOM about the same time. I had university lessons in the CORBA and the DCOM object model at the time. So I would call Eolas' patents obvious in 1993.

Re:$565+ million

[rijrunner]

Actually, the University of California is *owed* money. It does not owe money. The University of California is the original patentee.

Re:Didn't Microsoft pay them billions?

[EzInKy]

PS yeah, I know I could Google to refresh my memory, but then there wouldn't be much of a convo.

"Convos" concerning facts are much more insightful than "Convos" concerning speculations, so exert yourself and google away.

Dear Eolas

[fnj]

Rot in peace you low-life slimy fat lazy pigs.

Judge a man by his acts

[Camael]

They did release a browser. they did offer licensing.

Right after another browser had been released, two years prior, incorporating the very same elements Eolas patented. What the inventor of this prior browser freely gave to the world (he declined to patent it), Eolas tried to keep for themselves by patenting it.

Lets talk about specific facts instead of hand-wavy personal feelings.There was prior art.

One piece of prior art in particular, the Viola browser, invented by Perry Pei-Yuan Wei, an artist, software engineer and then a student at the University of California at Berkeley. That browser dates back to 1991 and its plug-in capabilities to 1992, nearly two years before Eolas filed for its patent.

Since you are referring to the state of the internet at that time, lets hear from Tim Berners-Lee himself how it was like :-

Berners-Lee described Viola as “an important part of the development of the web.”

The jury was shown an e-mail from Pei Wei to Berners-Lee dated December 1991 — almost two years before Doyle’s invention — which read in part: “One thing I’d like to do soon, if I have time, is to teach the parser about Viola object descriptions and basically embed Viola objects (GUIs and programmability) into HTML files.”

Later Tuesday, Wei would testify that he had demonstrated interactive elements working in the Viola browser to Sun Microsystems in May 1993 — several months before Doyle claims to have come up with his invention.

Berners-Lee described how the web community at that time wasn’t focused on patents or even money — Wei simply put his invention online for free.

If you read the decision of the US Federal Court of Appeal, it is clear that Eolas was aware of the invention of Viola because Pei Wei himself told them on 31 August 1994. Eolas went to Pei Wei's website and downloaded and read his paper. They went ahead anyway and filed their patent on 17 October 1994.

As for whether or not the Eolas patent was obvious, it was so obvious it was even mentioned in the 1991 letter to Berners-Lee.

So. If you rush to patent something obvious that was already shown by someone else, so that you can use the patent to sue large numbers of companies for money, what are you called?

Re:The true cost is technological impedance

[Khyber]

"n the case of IE the alternative proposal was to require users to click on a dialog box for every ActiveX control that appeared on a page."

That should have been the default fucking behavior in the first place.