[DMCA-Activists] EOLAS Patent Rejected

[Seth Johnson]

(Article texts pasted below.  -- Seth)


"The U.S. Patent and Trademark Office has invalidated a claim to Web browser
technology central to a case against Microsoft"
> http://zdnet.com.com/2100-1104-5171073.html

"U.S. patent examiners have made a preliminary finding that his patent never
should have been issued."
> http://www.miami.com/mld/miamiherald/business/national/8121511.htm

---

> http://zdnet.com.com/2100-1104-5171073.html


Feds reject Eolas browser patent

March 5, 2004, 3:48 PM PT


The U.S. Patent and Trademark Office has invalidated a claim to Web browser
technology central to a case against Microsoft, a move that could spare the
software giant from paying more than half a billion dollars in damages,
according to documents obtained on Friday. 


The patent agency's preliminary decision, if upheld, also means that
Microsoft will not be required to make changes to its Internet Explorer Web
browser that would have crippled the program's ability to work with
mini-programs that work over the Internet, such as the QuickTime and Flash
media players. 

Last year, an Illinois jury delivered a $521 million verdict against
Microsoft for infringing on technology developed by a privately held firm,
Eolas Technologies, and the University of California. 

"We have maintained all along that, when scrutinized closely, this patent
would be ruled invalid," Microsoft spokesman Jim Desler said in a statement. 

Desler said that Eolas has 60 days to respond to the decision and that the
agency's ruling was "just one step in their review process, but clearly a
positive step." 

Martin Lueck, the lawyer who represented Eolas, said it was not uncommon for
the patent office to invalidate a claim as the first step of a review
process, but said he was confident that the patent office would ultimately
uphold Eolas' claim on the Web technology. 

"They're somewhat routine and typical," Lueck said. 

In response to last year's jury verdict, Microsoft had started to make
changes to its Internet Explorer but suspended those plans last month,
saying that it believed that its claim on underlying technology for the Web
browser would be upheld by the U.S. Patent and Trademark Office. 

Microsoft's Desler noted that the U.S. Patent and Trademark Office has only
invalidated 151 patents out of nearly 4 million patents awarded since 1988. 

Last month, Judge James Zagel of the U.S. District Court for the Northern
District of Illinois upheld the $521 million verdict against Microsoft,
saying jurors were correct in determining that the company had infringed on
patents held by the University of California and Eolas, which jointly hold a
key Web browsing technology patent. 

The judge also suspended an injunction that would have required Microsoft to
make changes to its programs, pending the outcome of the patent office's
review.

---

> http://www.miami.com/mld/miamiherald/business/national/8121511.htm


Examiners Say Chicago Inventor's Patent Never Should Have Been Issued


By Barbara Rose
Posted on Sat, Mar. 06, 2004


Mar. 6 - In a potential threat to a Chicago inventor's $521 million jury
award against Microsoft Corp., U.S. patent examiners have made a preliminary
finding that his patent never should have been issued.

The finding is the first step in a process that could invalidate the
six-year-old patent claimed by Michael Doyle, founder of Eolas Technologies
Inc., which licenses the technology.

He and the University of California, which owns the patent, claim rights to
widely used technology that allows Web browsers to launch programs, such as
the plug-ins that play music.

Eolas and the university won one of the largest verdicts in patent
infringement history in August when a federal jury decided that Microsoft
had illegally incorporated the features into Internet Explorer and bundled
it with Windows. Microsoft has appealed the verdict.

The patent reexamination -- a separate process -- stemmed from an outcry
sparked by the court case. Companies, including long-time rival Apple
Computer Inc., joined Microsoft in devising software changes to allow
developers to work around Doyle's patent.

Tim Behrners-Lee, who some refer to as the father of the Internet, appealed
last fall to the U.S. Patent and Trademark Office, claiming -- as Microsoft
did in court -- that Doyle was not the first person to use browsers to make
Web pages interactive.

Members of the World Wide Web Consortium, including some of Microsoft's
historic foes, feared that enforcing such broad-based claims will stifle
innovation and riddle the Internet with restrictive tariffs.

Late last month, the patent office issued a preliminary determination that
Doyle's claims were not eligible for a patent because they were not new.

"We have maintained all along that, when scrutinized closely, this patent
would be ruled invalid," Microsoft spokesman Jim Desler said Friday.

He called the decision "clearly a positive step."

The university and Doyle have 60 days to respond.

Martin Leuck, their attorney, said the development is not unusual in a
patent reexamination and does not mean the patent will be found invalid.

"It's a more or less expected step from the patent office," he said. "We
believe based on the quality of the (invention) itself that the claims are
patentable, and we're going to respond accordingly."

Patent attorney Paul Vickrey of Niro, Scavone Haller & Niro in Chicago said,
"It's been our experience, this is quite common" for an examiner initially
to reject the patent's claims during a re-exam.

A spokeswoman from the patent office could provide no statistics on how
often preliminary findings are upheld.

However, she said that in 68 percent of reexaminations, one or more of the
patent's claims are changed.

Thirteen percent of time, all of the claims are confirmed, and 19 percent of
cases resulted in all claims being cancelled.

-- 

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