Patents: Two For The Road (To Hell)

The move to patent anything, everything, and all that remains after those categories are exhausted continues apace. rozzin writes: "ColorMax, who makes colour-blindness-compensatory lenses, has acquired a "patent for the human genes responsible for common, hereditary, red-green colorblindness"." Read below for a longer take on another disputed patent, which raises the all-important issue of actually determining what all those words in a patent application really mean. We can probably agree on whether something is a sphere, but what about whether something is "type data," or what constitutes the act of location? How patentable ought such things be? (I suggest browsing The League for Programming Freedom site for some cogent thoughts on this, including RMS's "The Anatomy of a Trivial Patent." Can anyone point to the best online apologia favoring software patents, or perhaps suggesting higher thresholds for them?)

Jim Lochowitz writes "A friend of mine just sent me this ( posted with permission) :

I just looked at Judge Zagel's ruling from yesterday in Eolas Technologies, Inc. v. Microsoft Corporation, 99 C 0626, which is currently pending in federal court in the Northern District of Illinois. Eolas alleges that Microsoft has infringed its patent, #5,838,906, issued November 18, 1998. If memory serves, the gist of the suit is that both Windows and Internet Explorer infringe the patent.

If you want to look at the text of the patent again, it can be found on the PTO's website [here]. (Or search for the patent #5,838,906 from [this] page.)

At this point in the case, the court is trying to resolve exactly *what* the patent covers before it can consider whether or not whatever Microsoft did infringed it. Yesterday's ruling had to do with what was meant by the following key language in the patent (found in Claim 1 and Claim 6):
"wherein said object has type information associated with it utilized by said browser to identify and locate an executable application".

As Judge Zagel put it,
"What is an executable application? What is type information that must be associated with the object? What does it mean for the type information to be utilized by said browser to identify and locate the executable application?"

Experts testified as to the answers to these questions. Eolas' expert was Edward Felten, who is an Associate Professor of Computer Science at Princeton. Microsoft's experts were H.E. Dunsmore, Associate Professor of Computer Science at Purdue University, and Michael Wallent, Product Unit Manager for Internet Explorer.

Judge Zagel found that (as used in the patent language), an "executable application" is computer program code which is launched to enable an end-user to directly interact with data, and one which is not an operating system or utility. He found that "type information" "may include the name of an application associated with the object." Finally, he found that "utilized by said browser to identify and locate" meant that those functions are performed by the browser.

Now that Judge Zagel has determined what this key language in the patent means, the court is now in a position to determine whether Microsoft has, in fact, infringed the patent. Trial could be the next step. It will be interesting to see what happens! I suspect that no matter who wins at the trial court level, there is likely to be an appeal. It will be a while yet before we learn what the resolution will be.

If you want to read the text of the opinion yourself, you can find it on CourtWeb as [this] pdf file.

Many of the rulings thus far in the case are available online. Put in "Northern District of Illinois," hit the "proceed to CourtWeb" button, and then enter the case number on the next screen. (The case # is 99cv0626.) Put in the date range you want- note that the case was filed in February 1999.

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