Monday, January 19, 2004

All Users potentially soon affected by the Microsoft-Eolas Case

Absolutely absurd and intolerable consequences

The inordinate time that LawPundit is spending on the Microsoft-Eolas case here is not without reason. Not only are there monetary consequences for the consumer - since WE ALL ultimately pay the bill for this nonsense, but there may be practical - absolutely absurd and intolerable consequences - for the average browser user down the road.

If the decision in the Microsoft-Eolas case is not overturned on appeal or if the USPTO does not render the patent unenforceable in the course of its currently ongoing review of that patent, nearly everyone using Internet Explorer may soon have to deal daily with the judicially required results of the clearly erroneous judgment made in that lawsuit.

Via the Buzz Archive of the Web Standards Project we are led to this Microsoft page on the immediate consequences of the case.

Essentially, since the Eolas patent has claimed exclusive ownership of what it labeled an "automated interactive experience" - that is essentially the broadly claimed invention - when accessing a remote server through a web page, Microsoft may try to get around this patent claim by simply inserting a pop-up box to cut off that automated interactive experience. According to Microsoft's own website, this will possibly look like the dialogue box below every time a remote server is accessed, whereby the user will then have to click the dialogue box as desired. Unfortunately, this could happen multiple times per internet page on the browser. This is the kind of idiocy that the standard in Bonito Boats was intended to prevent, by prohibiting the patenting of broad ideas or methodologies which act as monopolies on technological advance.

On this and related issues, see also Jeffrey Zeldman's "Patent Nonsense" and his link to Saving the Browser at Ray Ozzie's Weblog.

Additionally, although the LawPundit generally rejects swearing and does not excuse it here - there is a grassroots "discussion" of this issue at comments to Tom Gilder's blog where the patent-killing "click box" is already operational as a demo.

In the opinion of LawPundit, what we read in those comments are the "voices of the people" and there is a warning in those voices to the legislative and judicial establishment which should be heeded: get your act together.

A Call to Legal Vigilance against Overly Broad Patents being issued by the USPTO for Mechanical Juggling of Prior Art

Lawyers, legislators and judges around the world had better start paying closer attention to the crazy things that are going on at the United States Patent Office and in the courts in applying the patent laws to new technologies - and unless the current state of things is changed soon by rational legislation or by sensible judicial interpretation of patent laws relating to the internet as also for genetic research - the legal world will have increasingly to do with companies specialized not in making any inventions per se, but specialized in filing patents which mechanically juggle prior art in the hope of patenting broad methodology for which it is already obviously foreseeable that it will ultimately be adopted by commercial enterprises in the future.

This is a whole new game and a whole new way of making money: using the inadequacies of the patent laws and/or erroneous patent law interpretation by judges in dealing with the technological and internet age to fill "patent-application company" pockets.

Anticlue directs us to a - developer network - article by Guy Rish and Matt Liotta entitled "How to Get Around the Eolas Patent—Automatically" where it is written:

"Unless it's overturned, the Eolas ruling means tens of thousands of Web pages that use embedded plugins are infringing on the patent. Based on a procedure recommended by Microsoft, this filter will automatically update your HTML so you'll be in the free and clear."

Another article by A. Russell Jones, "The Eolas Patent: Don't Be a Victim", states:

Even if you're all for sticking it to Microsoft, you'd better keep a close eye on the Eolas case. If Eolas is allowed to enforce this patent, Microsoft won't be the only one paying: Web developers and Web consumers will pay a dear price, and Eolas has even more in store. "


[at page 2]

Outrage and Intellectual Extortion


This patent should never have been issued. That it was issued only underscores how little the Patent Office understands the process of creating software, or how similar the idea of interacting with remote content via the Web is to interacting with content stored locally (which the patent does not cover). In other words, Doyle and the UC didn't patent the idea of embedding content, they just patented the process of using such embedded content when it's delivered from a remote location. That was hardly a distinctive idea, even in 1993.

While such derivative ideas may be patentable [LawPundit note: no, IDEAS are not patentable, that is the whole point], and (as shown by this lawsuit) legally enforceable, using the court system to enforce such patents amounts to legal blackmail, not patent protection. That's especially true when the target is only one among many companies actively engaged in infringement. In other words, Eolas hasn't yet objected to any other company infringing on their patent rights, only the one with the most cash.

Fortunately, despite the loss of goodwill from developers, and despite the court ruling forcing it to pay damages, Microsoft has resisted this intellectual extortion, and has implemented changes that circumvent the patent rather than taking the easy route and caving in to Eolas' demands.


A Call to Vigilance

The fact that this patent was ever issued is ipso facto proof that developers should be extremely vigilant about preventing such patents in the future, perhaps via letter-writing campaigns, or by creating an organization dedicated to watching for overly broad patent applications that, if granted, would have an adverse effect on development. Lest you think that this call to vigilance is overblown you should peruse the other patents that Eolas may try to enforce in the future.

The LawPundit would strongly suggest that those articles be read in full at Also take a look at the Eolas patents at the link cited above - these are not inventions, they are simply methodologies juggling prior art. None of these things should be patentable and indeed, if the courts would strictly apply the standard in Bonito Boats, all of these patents are invalid.

But it is up to the courts to get to that important step in thinking and we see no indication that they are giving any signs of moving forward. Rather - up to now - the courts are not only permitting but exacerbating an already intolerable situation - and, caveat emptor - are thereby eroding the foundations of their own authority. When judicial decisionmaking is leading to the kind of inexcusable chaos that has already been engendered by the Eolas case, the collapse of the court system is not far off, because no one will take their pronouncements seriously in the future.

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