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'Eolas' Browser Plug-in Patent Case Rises Again

Zonk posted more than 7 years ago | from the return-of-the-living-patent-case dept.

Patents 107

eldavojohn writes "A legal battle that has been around since 1999 and seemingly ended in 2005 now rears its head again. In a confusing move, the USPTO 'reissued a Microsoft patent last week covering the same concepts outlined in the Eolas patent and with wording mirroring that of the Eolas patent. With both companies holding identical patents, the USPTO will now play King Solomon and decide which parent gets custody of the baby.' Both the Microsoft & Eolas patents are available online."

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USPTO makes the ruling? (0)

Anonymous Coward | more than 7 years ago | (#19355095)

Message me in a few years, to let me know how it turns out.

Re:USPTO makes the ruling? (1)

omeomi (675045) | more than 7 years ago | (#19355639)

Maybe they'll just cut the patent in half, and give half to each company...

Re:USPTO makes the ruling? (0)

Anonymous Coward | more than 7 years ago | (#19356929)

Hmm... Microsoft gets "markup-languages", and Eolas gets "calling system functions".
Fair 'nough.

Re:USPTO makes the ruling? (3, Funny)

trolltalk.com (1108067) | more than 7 years ago | (#19356917)

No, they'll both get revoked because SCO will claim to have some sort of "prior art" to hijacking patents.

Bitch... (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#19355101)

Funky Filthy.

Any chance in hell they'll both get revoked... (4, Interesting)

bbernard (930130) | more than 7 years ago | (#19355115)

...for being "obvious?"

Re:Any chance in hell they'll both get revoked... (2, Insightful)

geekoid (135745) | more than 7 years ago | (#19355197)

No, because they don't fall under what the USPTO considers obvious.

Thinking you could of come up with the same thing does not make it obvious.

Re:Any chance in hell they'll both get revoked... (2, Insightful)

Waffle Iron (339739) | more than 7 years ago | (#19356207)

Likewise, the USPTO considering it nonobvious does not make it nonobvious.

And software "plugins" have been obvious for decades. No matter what context they're used in.

Re:Any chance in hell they'll both get revoked... (3, Informative)

Frosty Piss (770223) | more than 7 years ago | (#19356743)

And software "plugins" have been obvious for decades. No matter what context they're used in.

There is a lot more to it than just the concepts of a software plug-in. There is even more to it than the very general description that gets bandied around here at Slashdot.

It's pretty standard here to take the title or first paragraph or so of the patent description and jump to the assumption that this is all they have. But this is almost always wrong.

Re:Any chance in hell they'll both get revoked... (3, Interesting)

Anonymous Coward | more than 7 years ago | (#19357093)

It's pretty standard here to take the title or first paragraph or so of the patent description and jump to the assumption that this is all they have. But this is almost always wrong.
Agreed. The best way to skim a patent is to go straight for the claims, as they are the most important for interpreting the scope of the legal scope of the patent, claim 1 usually being the broadest and most important. Here's claim 1 from the Microsoft patent:

We claim:

1. A method of invoking system commands from a mark-up language electronic book document associated with a computer running an operating system and having predefined system commands, the method comprising the steps of: (a) receiving an indication that a link in the mark-up language electronic book document has been selected; (b) locating an alias within the link; (c) reading an instruction located within the link; (d) identifying a predefined system command associated with the alias; and (e) executing the predefined system command associated with the alias; wherein the identifying and executing steps are performed if the instruction is to invoke the predefined system command; and wherein the instruction is X-MSR1INVOKE.


Let's see...

a. click a link
b. figure out what the link is pointing to
c. read the instruction at the location the link is pointing to
d. identify associated system command and
e. execute!

Except for the fact that it is associated with a computer running an operating system, I suppose that is fairly obvious...

However, you can have individual claims of a patent held obvious and be granted others, so don't stop at claim 1, because the later claims narrow the scope and may be upheld even if claim 1 isn't.

I am ANAL, but not a lawyer.

Re:Any chance in hell they'll both get revoked... (1)

trolltalk.com (1108067) | more than 7 years ago | (#19357239)

Parent wrote:

a. click a link
b. figure out what the link is pointing to
c. read the instruction at the location the link is pointing to
d. identify associated system command and
e. execute!

you mean they've patented the drive-by trojan/virus download?

Re:Any chance in hell they'll both get revoked... (3, Insightful)

kisrael (134664) | more than 7 years ago | (#19357225)

It's pretty standard here to take the title or first paragraph or so of the patent description and jump to the assumption that this is all they have. But this is almost always wrong.

That also doesn't mean that software patents are *right*.

More so than a lot of other professions, programmers entire job is to sit and think of ways of doing things. I think the standard for "non-obvious" should be much, much stricter for such a cerebral and abstract pursuit.

Re:Any chance in hell they'll both get revoked... (1)

Artifakt (700173) | more than 7 years ago | (#19360581)

Requiring the government to impose a standard selectively on certain individuals or corporations? There's some areas where I think that's actually a good idea, and you may have found another one - But:

Do we really have to go over why a lot of people will reflexively think this sounds like a very bad thing?

      You know, if you're going to propose something that sounds like tenderizing the dead Irish babies by beating them with the carcasses of the dead baby seals, you just might want to marshal a whole bunch of carefully reasoned arguments to support it.

Re:Any chance in hell they'll both get revoked... (2, Insightful)

Waffle Iron (339739) | more than 7 years ago | (#19357633)

Look at the single claim in the Eolas patent. That huge run-on sentence is nothing but a badly-worded description of the totally obvious way to solve the the following problem: "Expose a browser's plugin functionality to a scripting language.". Anybody, even less than ordinarilly skilled in the art of CS, would have come up with essentially the same series of steps.

Just because the people who Eolas bought the patent from were the first to pose the problem, that still doesn't make the solution any less obvious. This is a major flaw with the patent process that the SCOTUS has recently partially addressed: the fallacious assumption that if you're the first to solve a problem, then your solution must be nonobvious because nobody has solved it before. That's not true. Being the first to work on a problem has nothing to do with the obviousness of any solutions you come up with. And the Eolas patent is dead obvious, regardless of how many obfuscating phrases they pack into their claim.

Re:Any chance in hell they'll both get revoked... (2, Insightful)

dkf (304284) | more than 7 years ago | (#19358205)

Just because the people who Eolas bought the patent from were the first to pose the problem, that still doesn't make the solution any less obvious.
Funnily enough, the actual inventor is also the CEO of Eolas (which was a spin-off technology transfer firm from the university where he worked as I understand it, a common enough occurrence). While I don't care for software patents for the most part and think that they were enforced in a way that sucked (thanks to odd guidance from SCOTUS) under the standards of obviousness of the time what they were doing was patentable. I remember the early web from around 1993; the whole plugin thing was definitely novel at the time when Eolas was busy inventing, even if it became thoroughly obvious several years later. (Arguably, the technology became obvious because of people having seen the tech that the Eolas people were hawking around.)

Would anyone grant such a step ahead of the current normal state of the art now under modern "obviousness" rules? I hope not; the system was seriously screwed at the time. On the other hand, would you, if you were a small inventor that offered a tech to Microsoft but had it turned down only to then have the 800-lb gorilla then use it in a flagship product, want MS to get away with it? (If you answer "yes" to that one, I have to ask whether you like throwing chairs and chanting "developers"...) I know it's fashionable among a certain clique to hate Eolas, but according to the facts (yes, the truth really is out there if you choose to look) they're within their rights to get their payout. (FWIW, the usual reason for not pursuing a payout - that the other party has a defensive patent portfolio to apply in retaliation - don't apply this time because Eolas changed the field they were working in. It happens.)

Of course, if you're only riled up over this because of the effect it has on your web apps in IE, you should switch to Firefox which isn't adversely affected. :-)

Re:Any chance in hell they'll both get revoked... (2, Insightful)

bit01 (644603) | more than 7 years ago | (#19360511)

the whole plugin thing was definitely novel at the time when Eolas was busy inventing

Nonsense. The idea of adding software to other software at runtime, as needed, to increase functionality is basic. Very basic, and was being done very early on.

Naive people who think that giving a software blob a new name somehow mystically gives it new functionality are a large part of the patent mess and you're contributing to that mess by calling this name change an "invention".

Until the PTO can actually cope intelligently with language they will continue to be a sad joke. They're forever confusing language and reality, particularly in software. Patent proponents frequently don't even realize all they're talking about is a name change.

---

Windows and closed source software. The US intelligence agencies' back door to every network connected country and business on earth.

Re:Any chance in hell they'll both get revoked... (1)

samkass (174571) | more than 7 years ago | (#19358505)

I agree that the Eolas patent is obvious, but you can't just look at something and say "I could have thought of that!" and expect to overturn a patent. Basically, one can show "non-obviousness" in a few ways, including commercial success, fulfilling a long-standing need, or having succeeded where others failed at the task targeted by the patent. Examples of any of these are admissible evidence in court in support of a patent.

Re:Any chance in hell they'll both get revoked... (2, Insightful)

billsoxs (637329) | more than 7 years ago | (#19360303)

That huge run-on sentence is nothing but a badly-worded description of the totally obvious way to solve the the following problem:

I won't disagree with what you say about the quality of the patent - but the run-on and poorly worded bit is standard. I had a Lawyer explain it to me at one time - the upshot being that you need single sentences in the claims. The wording is also VERY precise (but not normal English!) Sorry - I do not remember the exact reason for the run-on bit but it made sense at the time.

Re:Any chance in hell they'll both get revoked... (2, Insightful)

Anonymous Coward | more than 7 years ago | (#19355321)

In the world of One-Click innovation, nothing is obvious. In the world of software patents, everything deserves a government-granted monopoly.

There are only two requirements for a software patent: the money to pay your lawyers and the conceit to bury your conscience.

Re:Any chance in hell they'll both get revoked... (1)

tinkerghost (944862) | more than 7 years ago | (#19355451)

having an onLoad='someFunction();' element in the body tag however does make this all rather obvious from what I can understand. Given that that feature predates either patent, I think prior art is supposed to cover this whole mess.

Re:Any chance in hell they'll both get revoked... (1)

dattaway (3088) | more than 7 years ago | (#19355739)

Nothing is obvious to a business manager paying lawyers. To you its obvious, but they think its shiny and cool and will take it. They want a price on everything, because they are in the business of buying and selling. Free ideas to them is their worst nightmare.

Re:Any chance in hell they'll both get revoked... (1)

Lockejaw (955650) | more than 7 years ago | (#19355871)

TFA says the patent was granted in 2001 and covers the use of "any 'embedded program object' that runs inside a browser." I thought we had Java Applets and Javascript doing that well before then.

Re:Any chance in hell they'll both get revoked... (1)

x2A (858210) | more than 7 years ago | (#19359401)

Doesn't matter when it was granted; matters when the application was filed.

Re:Any chance in hell they'll both get revoked... (1)

nine-times (778537) | more than 7 years ago | (#19356573)

I gather that not many things are refused for being "obvious" these days. Personally, I think the standard of proving something "obvious" should be very different:
  • If the same method is used in other fields and industries, it's "obvious". (you can't patent 'a menu system on an MP3 player' or 'using live-motion video in a computer game')
  • If, upon demonstration of the results of your "invention", other people would be able to duplicate it, then it's "obvious".
  • If another person in your field, faced with the same problem, would easily/necessarily come to the same solution, it's "obvious".
    • The reason I suggest these rules is that, as far as I can understand, the value in a patent system is to encourage people to disclose their inventions so that technology isn't lost or limited. But if it's a simple enough and obvious enough technology that people could replicate it, knowing only the problem to be solved by the "invention" or the results of the "invention", then you really aren't patenting a method or technology, you're patenting an idea. You had an idea of a problem that should be solved, or an idea of how to solve the problem, and you're patenting the obvious way of solving that idea because you can't patent the idea.

      I know, with some inventions the big deal is the idea, even though the technology isn't that inventive. It's nice to think that people should be rewarded for having nice ideas. However, the patent system isn't meant (or, at least IMO shouldn't be meant) to protect smart people who have ideas. It's meant to protect inventors who develop new technology. When an inventor (or company employing an inventor) invest resources into inventing and developing technology, we've decided as a society to protect that technology's use so that the inventor (or company) can make a return on that investment.

      So it's not enough that "no one has thought to solve this problem before", but it should also require that "having looked into solving this problem, another person with expertise in the field would still need to invest a significant amount of time and money into developing this particular method/technology to solve the problem".

      I'm not sure how the USPTO should go about measuring that standard, but I believe that should be the idea behind the standard.

Re:Any chance in hell they'll both get revoked... (1)

Macadamizer (194404) | more than 7 years ago | (#19359963)

You know, your suggestions are actually pretty close to the Graham factors that are "secondary indicia" of non-obviousness:

-- long felt need in the industry;
-- acclaim from others in the industry;
-- success in the marketplace;
-- evidence of copying;
-- unexpected results;
-- offers to license the technology.

None of these prove that a particular invention is non-obvious, but they can be used to help establish non-obviousness.

Re:Any chance in hell they'll both get revoked... (2, Insightful)

suv4x4 (956391) | more than 7 years ago | (#19356791)

Any chance in hell they'll both get revoked... for being "obvious?"

let's hope. But if only one will be revoked, I hope it's Eolas. Microsoft may be terribly competitive, and using their advantages to hurt competition, but they're not poor (like Eolas) and aren't stupid (like Eolas).

They won't sue anyone over this patent.

If anything, this confirms again Microsoft, and any other big company, is more or less forced to patent bullshit so they have a chance to fight back in such frivolous suits.

Stupid Idiotic Patent System (0)

Anonymous Coward | more than 7 years ago | (#19355127)

The patent system is broken. Software patents are just plain dumb.

Do something about it now before things get worse.

I vote we cut them in half! (2, Insightful)

Binestar (28861) | more than 7 years ago | (#19355143)

Worked for King Solomon! Just split Microsoft in half, Applications apart from OS and we're all set!

Re:I vote we cut them in half! (1)

spun (1352) | more than 7 years ago | (#19355281)

Ahhh, but he didn't actually split anything. The imposter didn't care, but the real mother did and said, "No, I'd rather you give the child to the other woman," and that's how Solomon knew who the real mother was. Yes, I'm being pedantic. No, I'm not a Christian. I just read the Bible for its literary value.

Re:I vote we cut them in half! (1)

Binestar (28861) | more than 7 years ago | (#19355379)

Yes, I know how the story turns out, but if I were to go into the whole spiel about it, then try to fit it into a joke format, I would end up with an onion article instead of a potentially witty one liner!

Anti-semite (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#19355385)

Thanks for letting us know that Jews don't read the Hebrew Bible.

Jackass.

Re:Anti-semite (1)

spun (1352) | more than 7 years ago | (#19355519)

Say what? I'm sorry, was it the "I'm not a Christian" line? Should I have said, "I'm not a Christian, Muslim, or Jew" instead? I know you're just trying to troll, but you're confusing me.

Re:Anti-semite (1)

billsoxs (637329) | more than 7 years ago | (#19360343)

You wanted an argument? Oh, I'm sorry, but this is abuse, you want room 12A, just along the corridor. Stupid git.

No, He(?) was not trying to confuse you. He(?) just wanted the abuse room - which you seem to be in charge of. SO, go ahead and abuse him. He wants to be ripped - the stupid git.

Re:I vote we cut them in half! (1)

aichpvee (631243) | more than 7 years ago | (#19355435)

I just read the Bible for its literary value.

Which sadly isn't much. I much prefer the re-retellings of those stories that have come out since instead of the retellings that wound up in the bible. More refined and less whining.

Re:I vote we cut them in half! (1)

spun (1352) | more than 7 years ago | (#19355679)

What I mean by that is that most of western literature is influenced by the Bible. If you don't know the stories, you won't catch half the references in most of the more important writings of the last 2,000 years.

Re:I vote we cut them in half! (1, Funny)

Anonymous Coward | more than 7 years ago | (#19356015)

What a load of garbage, I don't even know where to start with that bogus claim.

nuts (0)

Anonymous Coward | more than 7 years ago | (#19356195)

You don't know where to start because your bogus claims are themselves bogus. The bible is a very important piece of historical culture at a bare minimum and has greatly influenced not millions but *billions* of people.

Re:I vote we cut them in half! (1)

aichpvee (631243) | more than 7 years ago | (#19356451)

Oh, I know what you meant. I just prefer the re-retellings because the versions that wound up in the bible are pretty weak. Though I do love Genesis 38. If that isn't begging for a theatrical remake, then nothing is.

And it is because... (3, Interesting)

jd (1658) | more than 7 years ago | (#19355811)

...King Solomon reckoned that one who was genuine would be compassionate that his technique worked. (This is independent of whether the event actually happened.) A derivative of this can be found in the puzzle of walking up to two people, one who will always lie and one who will always tell the truth. You need to know the answer to a yes/no question, but can only ask one person one question. What do you ask that will guarantee the right answer? (In the biblical case, substitute imposter for person who lies, and one who tells the truth for the real mother.)

Obviously, Solomon's situation - and solution - differed somewhat from the classical problem and answer in the details, but underlying it is the same basic idea, which is to force the liar to stay consistent and the honest person to change.

The USPO (and all other patent offices) rely on a high level of honesty, as they stand, but what if a variant of King Solomon's approach could be used, when rival claims exist? Have a way of putting the claims on the spot such that the real claimant will concede something before any false claimants would? Mind you, that might not work - current culture is designed to put self above all else, then both would rather rip the intellectual baby in half. It would only work with ideas developed by people who primarily care that the customers get the products. For example, I could easily see a humanitarian who develops a cure for some deadly disease preferring that the product be developed by someone else than not at all. That's not going to happen very often, though.

Nonetheless, I believe that such methods are inevitable, eventually. The system as it stands doesn't scale and frequently doesn't work well - if at all. Somebody will have to develop filtering techniques that allow false and fraudulent claims to be detected much more easily - and preferably by anyone who wants to apply those techniques. The patent pending scheme is supposedly so that problems can be found - well, that's all fine and good, if there's any way to find said problems. If a programmatic test can be found to do at least some of the filtering, then all the USPO needs is to distribute the appropriate BOINC clinet. Eventually, this must happen, as there's simply more work than can humanly be done in the time alloted and the system, the inventors and the innovators are suffering as a result.

Re:And it is because... (1)

JohnFluxx (413620) | more than 7 years ago | (#19356361)

I hated that Solomon story so much. Consider the fake mother. Is it really likely that she would fight so hard to have a baby, to the point where the case gets dragged before the King, with such desperation for a baby to have and to love, that she'd be willing for the baby to die?

And when was the last time you heard of a woman allowing a baby to die, even if it's not hers? Just that alone is just so very unlikely.

Re:And it is because... (1)

jd (1658) | more than 7 years ago | (#19357111)

That's one reason it should not be taken as a literal event, but as a philosophical discourse on the association between honesty and compassion. (Another reason is that there is a statement that the events during the time of Solomon are documented elsewhere, but the book named no longer exists.)

Now, having said that, there have been many events in the news that are comparable in destructiveness and lethality to the Solomon story - by both real and fake mothers. There was a terrible story in the just last few days. Insanity places no bounds on behaviour - which is why I firmly believe mental health care should not be seen as something distinct or as something "tainted" by insurance agencies or by society, and why such care should be private (to eliminate privacy concerns) and safe (to eliminate the risk of "fixing" those things that make us individuals with a full range of emotions).

I'm not going to get into gory or gross details - the newspapers do a far better job of it anyway - but yes both real and false mothers have killed children to prevent them falling into someone else's hands, to save them from some other fate, or during an attempt to obtain them. There have usually been other reasons for men killing children, but Belgium is still investigating corruption amongst people in high authority involving such deaths. Britain has not recovered in forty years from Ian Brady and Myra Hindley. Their names are etched into the minds of the populace, carved into the psyche of the nation and so dramatically burned into culture as to change the whole of society in just a few months.

Re:And it is because... (1)

JohnFluxx (413620) | more than 7 years ago | (#19359633)

The reason you do see it in the news is because the world is a big place, and because such events get newspaper attention. There are 6 billion people on this planet. It's perfectly okay for me to state it's very rare, even if there's a newspaper report on such an event every week.

It's a case of statistics though. If you take a couple at random that are arguing over a baby, how likely is it that the fake mother will be okay with the baby being killed?

Re:And it is because... (1)

jd (1658) | more than 7 years ago | (#19360805)

Oh yes, you are absolutely right in saying that it's extremely rare. So rare that it's a motif used in some of the darker works of horror throughout history. The odds of the scenario you outline resulting in the fake mother being ok with the baby being killed are about on-par with the odds of someone carrying a highly contagious disease for prolonged periods of time in perfect incubation conditions and perfect contamination conditions without affecting a single individual. It's very very very rare, so unimaginably rare that it does hit the news when it happens.

I certainly don't disagree with you in any way on this, in terms of scenario. My point, I guess, is that the author of that fable was probably intending to shock, to keep it memorable, and that comparable conundrums that have no threats of violence have existed forever in society. So much so that culturally lies, greed and destructiveness are almost inseparable. Likewise, culture has identified truth, compassion and creativeness as a single, unified concept. These connections may have nothing to do with reality, they are merely ideas that have been built for tens of thousands of years. Being old doesn't make them special, being old merely means the ideas can draw on social security.

Re:And it is because... (0)

Anonymous Coward | more than 7 years ago | (#19357299)

Quote:
And when was the last time you heard of a woman allowing a baby to die, even if it's not hers? Just that alone is just so very unlikely.
Unquote

A random search on internet:

http://news.bbc.co.uk/2/hi/uk_news/england/coventr [bbc.co.uk] y_warwickshire/6176075.stm [bbc.co.uk]

http://www.kxnet.com/getArticle.asp?ArticleId=1243 [kxnet.com] 34 [kxnet.com]

http://www.nctimes.com/articles/2006/05/17/news/co [nctimes.com] astal/22_16_515_16_06.txt [nctimes.com]

http://www.nctimes.com/articles/2006/05/17/news/co [nctimes.com] astal/22_16_515_16_06.txt [nctimes.com]

Re:I vote we cut them in half! (1)

Breakfast Pants (323698) | more than 7 years ago | (#19359319)

No no, see, because Kramer told Newman he would rather Elaine have the bicycle than have it sawed in half, while Elaine didn't loudly protest, Newman knew Kramer was the one who truly cared for the bike.

That wasn't what Solomon did (1)

Chemisor (97276) | more than 7 years ago | (#19358903)

King Solomon offered to cut the baby in half to find out who the real mother was, since the real mother wouldn't do that to her baby. In this case the appropriate parallel would be to ban browser plugins to both Microsoft and Eolas. Since Eolas is little more than a PITA and doesn't have a product of any kind, they shouldn't be bothered by that at all, which by analogy with Solomon's decision would give the patent to Microsoft.

I'm glad a read the article (4, Informative)

geekoid (135745) | more than 7 years ago | (#19355155)

all that are doing is giving MS a chance to prove that they invented the technology before it was patented. This is not unusual.

It is also why there are forms of invention protection you can use when shopping around for investors.

Re:I'm glad a read the article (0, Troll)

ajanp (1083247) | more than 7 years ago | (#19355275)

I don't understand why Microsoft, Eolas, and the USPTO need to waste so much time and money defending a patent on a piece of crap like ActiveX. I think they're all conspiring together to destroy the interwebs.

Re:I'm glad a read the article (1)

jrumney (197329) | more than 7 years ago | (#19357993)

Microsoft were 4.5 years late (as usual).

Inventors: Doyle; Michael D. (Wheaton, IL)
Assignee: Eolas Technologies, Inc. (Wheaton, IL)
Appl. No.: 09/481,984
Filed: January 11, 2000

Inventors: Beezer; John L (Redmond, WA), Silver; David M (Redmond, WA), Zeman; Pavel (Kirkland, WA)
Assignee: Microsoft Corporation (Redmond, WA)
Appl. No.: 10/870,472
Filed: June 18, 2004
On the other hand, Netscape has had plugins since about 1994, so both patents should be declared void.

Re:I'm glad a read the article (2, Informative)

mavenguy (126559) | more than 7 years ago | (#19358509)

Except you missed a few things...

Inventors: Doyle; Michael D. (Wheaton, IL)
Assignee: Eolas Technologies, Inc. (Wheaton, IL)
Appl. No.: 09/481,984
Filed: January 11, 2000


CROSS-REFERENCE TO RELATED APPLICATION

This application is a continuation of and claims the benefit of U.S. Provisional Application No. 60/115,502, filed Jan. 11, 1999, the disclosure of which is incorporated herein by reference.

Inventors: Beezer; John L (Redmond, WA), Silver; David M (Redmond, WA), Zeman; Pavel (Kirkland, WA)
Assignee: Microsoft Corporation (Redmond, WA)
Appl. No.: 10/870,472
Filed: June 18, 2004


This application is a continuation of and claims priority from application Ser. No. 09/465,081, filed Dec. 16, 1999, now U.S. Pat. No. 6,826,725, issued Nov. 30, 2004, the content of which is herein incorporated by reference in its entirety.

Thus, Eolas is entitled to a filing date of Jan. 11, 1999 and Microsoft is entitled to a filing date of Dec. 16, 1999. Thus Microsoft filed about 11 months later, but before any Eolas patent issued. Microsoft would be the Junior Party in an interference, and would have the burden of proof of prior invention.

Re:I'm glad a read the article (2, Interesting)

rs79 (71822) | more than 7 years ago | (#19359335)

"On the other hand, Netscape has had plugins since about 1994, so both patents should be declared void."

In the fall of 1993 Jim Mercer showed me a mpg plugin for NCSA Mosaic in Toronto.

(I quit my consulting gig the next day to do web stuff)

This could be great! (0)

Anonymous Coward | more than 7 years ago | (#19355165)

They might end up cutting Bill Gates in half.

This is a GOOD patent (0, Troll)

Richard McBeef (1092673) | more than 7 years ago | (#19355181)

Because it can screw Microsoft. Right?

No. (1)

paladinwannabe2 (889776) | more than 7 years ago | (#19355391)

I can't speak for all /.ers, but I for one hate software patents much more than I hate Microsoft. Specifically, I use Microsoft products to help me do my job, and software patents potentially interfere with my ability to do my job. My code is already protected by copyright, all patents would do is create weak and stupid barriers to entry for our competitors.

Re:No. (3, Interesting)

CastrTroy (595695) | more than 7 years ago | (#19355477)

This is my biggest beef with software patents. Software already has copyright protecting it. It also has trade secrets protecting it (at least in closed source software). And it has patents. And in all the patents i've seen, I've never seen a full source code disclosure of a working model. So, now when the patent expires, you still can't dupicate it (assuming it's not trivial) because you have to figure out all the source code on your own. As far as I'm concerned, copyright and trade secrets should be enough to keep your software safe.

Re:No. (0, Flamebait)

stubear (130454) | more than 7 years ago | (#19355585)

copyright protects the actual code, the expression of the idea in a tangible medium as it were. Patents protect the idea itself (as long as it's a unique and patentable idea). The sooner you slashmonkeys understand the simple, 101 level basics of intellectual property, the quicker we can get over these stupid blogs and forum comments ranting and raving about things they don't understand well enough to formulate a well reasoned opinion, much less formal argument.

Re:No. (1)

Richard McBeef (1092673) | more than 7 years ago | (#19355669)

I'm not sure what will happen first. You getting modded down to -1 or someone posting that there's no such thing as intellectual property.

Either way, both will happen.

Re:No. (3, Insightful)

CastrTroy (595695) | more than 7 years ago | (#19356539)

But software is more like a creative work than a physical object, so you might want to compare it to books. You get a copyright on a book, so that people can't print off copies of your book and make money off it. Imagine if you could get a patent on a book, such that nobody else could write a book with a similar plot. We'd have a lot less books, or a lot more litigation going on in the book making industry. You couldn't even start to sit down and write a book without reading through thousands of patents on books that people had written. It would be fairly impossible for two authors to come up with exactly the same book, but you could probably find lots of books with similar plots, and similar pieces of text. Just like with software. Presented with the same problem, most programmers will probably come up with very similar methods of solving the problem. I guess it's more of a problem with patents in general than with software patents. With so many patents out there, how are you supposed to know if you are infringing on something, and if you take the time to do the research, to see if you are infringing, then it will take you years before you can even start developing something.

Re:No. (0)

Anonymous Coward | more than 7 years ago | (#19356543)

Speaking of ignorant slashmonkeys, you don't seem to be aware of the fact that you cannot patent an idea. Pot, kettle black.

Re:No. (0)

Anonymous Coward | more than 7 years ago | (#19358389)

Ideas are patentable. Abstract ideas are not allowed under 101. Point, set, match.

Re:No. (0)

Anonymous Coward | more than 7 years ago | (#19356549)

Patents protect the idea itself (as long as it's a unique and patentable idea). The sooner you slashmonkeys understand the simple, 101 level basics of intellectual property

You mean like the simple, 101-level basic that an idea can't be patented? Look it up, laughing boy, it's explicitly stated in any number of places in various patent office documentation, as well as in patent law: you can't patent an idea, you patent an implementation of an idea. Dork.

You know, trolls don't usually bother me much, but when the troll is stupider than the person they're trolling...

Re:No. (0)

Anonymous Coward | more than 7 years ago | (#19360669)

Talk about nitpicking,.. so fine, replace "idea" with "implenetation of an idea" - everything he said holds. Copyright IS NOT enough to protect a software product, especially if it is to be a basis for a company.

Re:No. (1)

aichpvee (631243) | more than 7 years ago | (#19355479)

I'd rather there be no microsoft and no apple than no software patents. Not that I like patents anyway.

Re:This is a GOOD patent (1)

AKAImBatman (238306) | more than 7 years ago | (#19355833)

This is a GOOD patent because it can screw Microsoft. Right?

Let me sum up my disagreement in a single line:

"Go Microsoft! Rah, rah, rah! If you can't beat them no one can!"

Ugh. I feel dirty now.

See why I don't like software patents (5, Insightful)

Marc D.M. (630235) | more than 7 years ago | (#19355193)

See why I don't like software patents, because they're stupid and everyone gets hurt.

Unless of course, you manage to patent something that a large company will have to pay you $500+ million for. But if that's my large company, I'll be upset.

At this rate, we might as well patent integration and differentiation.

Re:See why I don't like software patents (1)

doktor-hladnjak (650513) | more than 7 years ago | (#19355707)

Well, not everybody loses. Think of all the lawyers!

Re:See why I don't like software patents (1)

kosmosik (654958) | more than 7 years ago | (#19359269)

> See why I don't like software patents, because they're
> stupid and everyone gets hurt.

Well I don't see it this way. Fuck MS and Eolas - they get what they deserve. But of the Eolas patent it is me who had some more job to do. I mean I needed to rework some webpages to use some quirky JavaScript hacks that have broken some other JS code on my sites (hey I am not a real pro and I just want the pages to work). So I've had to do some more labour because of the Eolas case.

Now lets see - MS wins - pushes update that yet again changes plugin behaviour to previous and I will have even more work to do with my websites...

The real ones that get hurt (who in MS got hurt?) are the people that must deal with the technology. MS loves patents cause they give them advantage. And MS can deal with that from time to time some other patent bites their ass - it is like cost of operation.

So my point is basically that MS is no victim here - they love the situation with patents right now.

Re:See why I don't like software patents (1)

Marc D.M. (630235) | more than 7 years ago | (#19360375)

The real ones that get hurt (who in MS got hurt?) are the people that must deal with the technology.

Exactly my point. Everyone gets hurt. Especially you and I.

um ... what? (1)

fangorious (1024903) | more than 7 years ago | (#19355205)

Since Microsoft already paid a licensing fee as a result of the law suit, seems pretty cut and dry. Either both should be rejected, or Eolas keeps the golden goose.

Re:um ... what? (1)

KarmaMB84 (743001) | more than 7 years ago | (#19360133)

That makes little sense... What does Microsoft's paying for a license as a direct result of intervention by the courts (which could be overturned) have to do with them proving they were the real inventor?

Ok (1)

C_Kode (102755) | more than 7 years ago | (#19355213)

All Slashdot users apply for the same patent. Then we can all fight for the baby.

Choose your weapons (2, Funny)

AP2k (991160) | more than 7 years ago | (#19355399)

To the death in a Roman Coliseum?

Re:Ok (1)

guruevi (827432) | more than 7 years ago | (#19356927)

Well, you could always just apply for the patent and then make over some money ($1000) to me for breaching my patent instead of going through that tedious litigation process and losing more money on lawyers (@ $100/hour and I can keep 'em in court for more than 10h).

First Invent or First Post? (1)

Dareth (47614) | more than 7 years ago | (#19357235)

Ha ha ha... is it first to invent or first "patent" post for the /. contest?

In other news ... (3, Funny)

WrongSizeGlass (838941) | more than 7 years ago | (#19355293)

... the USPTO issued itself a patent on issuing Identical patents. This new patent, along with its other patents for issuing Holy Crap Obvious patents and Why Not patents will now allow it to sue itself under the latest incarnation of the Recursive Rules of Litigation.

Actually they are "Me Too" patents (n/t) (0, Offtopic)

Mostly a lurker (634878) | more than 7 years ago | (#19359381)

n/t

The USPTO is beyond... (0)

Anonymous Coward | more than 7 years ago | (#19355301)

...fawkked in the head... they are probably criminal now, as they've demonstrated to the whole world that they do not even consider the very patents they've already issued as prior art. They must be either accepting bribes and therefore should be investigated by the FBI, or are doing lots of mind-numbing drugs, and therefore should be investigated by the DEA. Or both.

Re:The USPTO is beyond... (1)

KarmaMB84 (743001) | more than 7 years ago | (#19360157)

The US is first to invent and not first to file. If Microsoft can prove they invented it before Eolas, the Eolas patent is history and Microsoft might end up owning it.

Break out the knife again (1)

iminplaya (723125) | more than 7 years ago | (#19355313)

And cut the baby in half for them to share. Let's see who's willing to give it up.

So what you're asking for is... (1)

sabt-pestnu (967671) | more than 7 years ago | (#19359445)

... for there to be TWO patents out there, each for half the technology, with Eolas having one, Microsoft the other?

What they'd do is cross-license with each other, and form a cartel to squeeze the rest of us.

Splitting patents is like chopping starfish up and throwing the pieces back into the bay.

This is why Microsoft should shut up (2, Interesting)

gilesjuk (604902) | more than 7 years ago | (#19355411)

They keep going on about Linux and how it infringes on their patents. I'm sure Microsoft's products infringe on quite a few too, it's just many companies don't have the time and money to spend suing Microsoft.

I'm all for a Solomon decision (1)

Opportunist (166417) | more than 7 years ago | (#19355591)

Butcher the patent and send both of them home.

Copyright? (1)

bigattichouse (527527) | more than 7 years ago | (#19355619)

Can they just bust microsoft for copyright infringment now?

laughing all the way to the bank (0)

Anonymous Coward | more than 7 years ago | (#19355647)

In August 2003, a federal jury found that Microsoft had infringed on the Eolas patents and awarded the firm $521 million

I imagine Eolas will be laughing all the way to the bank... regardless

How do you spell 'broken'? (2, Informative)

fredrated (639554) | more than 7 years ago | (#19355691)

USPTO

IsNot Patent (2, Funny)

Nom du Keyboard (633989) | more than 7 years ago | (#19356105)

Eolas: It's the same patent!
Microsoft: IsNot!
Eolas: How can you say it IsNot the same patent?
Microsoft: because we've patented IsNot, [slashdot.org] , which means we can say it, and you can't!
Eolas: IsNot IsNot IsNot!
Microsoft: Lawyers!!!

Re:IsNot Patent (1)

Mattintosh (758112) | more than 7 years ago | (#19357113)

I think Apple could sue Microsoft over the iSnot patent.

What the diff between IsNot and != (1)

denis-The-menace (471988) | more than 7 years ago | (#19357783)

What the difference between IsNot and != ?

Sounds like old combination of operators with a new name for .NET

BTW: IANA.P (I Am Not A .NET Programmer)

Re:What the diff between IsNot and != (0)

Anonymous Coward | more than 7 years ago | (#19361201)

While .NET C# uses "is" a a test on type, not value, if "IsNot" follows after the VB6 usage of Is, then it's related to propagation of Null.

Any relational operator against Null always returns false. Logical operators don't, however, and Is/IsNot don't.

Example:

(A Null) is always False
(A IsNot Null) tests what it says.

Oh, and remember that Null in VB, VB.NET is not at all related to a NULL pointer. VB and VB.NET use Nothing for that.

Two possibilities (1)

Irvu (248207) | more than 7 years ago | (#19356691)

1) Microsoft has a patent office that spends its days generating patents based upon other people's work and the Eolas patent just ran through the mill.
2) Microsoft thinks, perhaps knows that they can get away with anything because its not about what your patent says but about how much money and bull you can throw behind it. In that event they elected to coopt the Eolas patent given how much fun they have had with this and the whole affair is really just a big kiss my ass to Eolas.
3) Microsoft is hoping to so annoy the Patent office with this conflict nonsense that they rule both patents invalid on the face of it rather than fight to justify one or the other. Yes the dates differ but perhaps the amount of money Microsoft can throw at fighting it will cow the patent office into submission.

Re:Two possibilities (1)

ekgringo (693136) | more than 7 years ago | (#19357631)

There are three types of people in the world: 1. Those who can count 2. Those who can't

Re:Two possibilities (2, Funny)

marcello_dl (667940) | more than 7 years ago | (#19359095)

lemme guess, somebody patented enumerating three possibilities with a summary stating there are three possibilities, so you had to work around that.

this FP Nfor GNAA! (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#19356755)

working on varIous grandsta8ders, the perspective, the file was opened

Et tu, Brute ? (1)

billcopc (196330) | more than 7 years ago | (#19357505)

Why don't we settle this roman-style and eradicate the patent from both portfolios ? This patent has been used as a weapon... Who would you rather give a gun to: a gangster or a thug ? Either one's going to hurt you with it.

the fundamental error here is... (1)

3seas (184403) | more than 7 years ago | (#19357833)

... there is a time limit from fist publication of an invention to when it can be applied for a patent. If that time is exceeded then no patent will be granted.
The case itself (not to mention when the USPTO first granted the patent) is far older than that time limit.

Obviously if MS can prove they invented it first, then both patents are invalid.
Eolas because they were not the first to invent and MS because the technology was in use far longer than allowed, prior to their patent application.

This can also be the test case to prove or disprove the arguement of changing to first to file from first to invent, as supposedly the arguement is that prior art evidence rules in either case. In other words, you shouldn't have to file for a patent on something you do not want or believe is patentable, that you developed and without fear that someone else will take your work and be the first to file.

If the USPTO ignores their own first publication rules (and this does include public use) then they only add to the invalidation of the patent system (which extends beyond just software).

And this doesn't even touch on the fact that software patents are acts of fraud, as software is made up of the universal agreed upon things that cannot be patented.
Natural Law, Physical Phenomenon, Abstract ideas and the rest (i.e. mathematical algorithms) are subsets of these three primary NON-PATENTABLE things.
see: http://threeseas.net/abstraction_physics.html [threeseas.net]

Could be valid, but shouldn't matter. (3, Interesting)

Kaenneth (82978) | more than 7 years ago | (#19357953)

When this idea was 'invented', web browsers were new, and the idea of a browser plug-in was to allow the playing of media, like .GIF's, .WAV's, and .FLI's on a web page.

Taking that idea of a plug in, writing one that makes it's own connection to a server to provide interactive data appears to be the basic 'invention'.

When I looked through Google Groups (USENET Archive) I could find nothing mentioned prior to then that mentioned an interactive plugin.

My thought is, because it's such a bad, horrible, wrong idea.

Browser plug-ins are not portable, between platforms, OS's or browsers. They run in native code, and need hardware access to render video/audio and access the network making them difficult to secure. They hurt maintainability, accessability and localizability. They can be used for DOS attacks on third parties. Have version compatibility issues, etc. etc. You're basically throwing away the entire point of a standards based browser, in favor of a single-use executable.

Patenting browser plugins that get embedded in pages was like patenting shooting yourself in the foot.

how many people can rewrite one article (1)

EdelFactor19 (732765) | more than 7 years ago | (#19358093)

if you RTA you notice that this one is copy pasted from ars techncia which at least was paraphrased from the seattle paper entry from bloomberg news.

which begs to ask the question: How many licks does it take to get to the center....

I wonder if we can sue... (2, Interesting)

RufusFish (253008) | more than 7 years ago | (#19358259)

Our company spent upwards of half a million dollars revising code so that the 'click to activate' crap wouldn't show up in IE. Our team spent at least $40k.

Though mildly irritating for your average at-home browser, a message saying anything about 'clicking to active' an 'Object' is a barrier of entry for someone who is using software to learn to read at a readiness level; we couldn't just 'leave it be'.

Now that it gets reversed? I'd like to have that chunk o' change back, that's for sure.

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