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Appeals Court Sends Eolas Case Back For New Trial 88

Posted by timothy from the litigious-society dept.
Rolan writes "News.com is reporting that an Appeals court has partially overturned the lower court's decision in favor of Eolas. From the story: "Microsoft on Wednesday claimed a victory in a high-profile Web browser patent dispute, as an appeals court partially reversed a lower court decision that left the software giant exposed to $565 million in damages." The article does not say what part was or was not overturned." Reader shogusumi adds a link to the ruling itself (PDF), supplies a link handy for catching up with the claims at issue here, and writes "As a refresher, this is the case that claims that the functionality provided by IE through the use of embed, applet, and object tags violates a patent owned by Eolas and the University of California."
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Appeals Court Sends Eolas Case Back For New Trial More

Appeals Court Sends Eolas Case Back For New Trial

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  • Skrew MICROSOFT!........OH WAIT.. (Score:5, Insightful)

    by scosco62 ( 864264 ) * on Wednesday March 02, 2005 @05:19PM (#11828339) Journal
    This is a good test of how strong your IP belief system is...............especially if you hate Microsoft.

    IHMO, some things should remain unpatentable....until both sides on the IP issue agree on that, the patent lawyers will continue to make everyone pay. I don't think case will be the one that does it either.

    Just my 2 cents.........

    • You can patent anything these days. I am sure

      "A contraption for the containment or housing of odorless, colorless, and tasteless element of nature for which someone could use for various means in keeping a homosapien or other biological species functioning"

      would probably be granted to you. That why you could put air in a bag and charge people to breathe.

      It's CRAZY I SAY CRAZY.

    • I believe in the protection of IP be it copywrite or patents. However I dont think every thing that has been patented should have been. Had it been me I would not have granted Eolas their patent.
    • If Microsoft lose they will have a strong motivation to lobby to have the law changed.

      If they win it will show them that having piles of cash is enough to beat the current IP system whilst using it to crush the small guys who cant fight in court.

      Better than they lose.
  • Is there a reason why Microsoft cannot just buy the patent over? Or is it waiting until this patent is set firmly in the stone (i.e. cannot be appealed further), then it buys over the patent?

    I don't know which is worse, MS lost the case or owns the patent in the end.

    • Re:Patent For Sale? (Score:5, Interesting)

      by superpulpsicle ( 533373 ) on Wednesday March 02, 2005 @05:26PM (#11828427)
      Why buy the patent when you are already hiring the most expensive lawyers in the country. They could help you win anything and everything in a legal system that revolves around money. Which M$ obviously has plenty of.

      M$ strategy
      ------------
      1.) Send lawyer and drag case out for 5 years till the technology doesn't matter

      2.) Send lawyer and drag case out for 5 years till the opposition can't afford their lawyers anymore.

      3.) Send lawyer and win

    • Re:Patent For Sale? (Score:2, Insightful)

      by stratjakt ( 596332 )
      Why would they sell it?

      If Eolas wins this case, they have themselves a license to print money, since this patent is applicable to any number of software projects.

      They can pull an SCO and threaten every individual user of practically every web browser, and more. Lots of apps seamlessly load plugins based on the input data, say, Winamp.

      Yessir, free money, and they didn't have to work a day in their lives to earn it.

      • Re:Patent For Sale? (Score:3, Informative)

        by Zone-MR ( 631588 ) *
        Yes, that's if they win the case, which they won't assuming the legal system has any hint of sanity. There's so much prior art out there, it should be trivial to invalidate the patent.

        I have to agree with the parent poster. If I was Eolas, I'd sell it and make a guaranteed x million $'s. If MS was really evil, they'd buy the patent and demand royalties from competing browsers who can't afford the legal fees neccessary to challenge the patent.
    • To be stupidly paranoid about this, losing the case could be a good thing for Microsoft. If they had to cough up say, $1 billion to never hear about it again, it would be worth it to get rid of all the other competing browsers.
    • The cost to do that will be at least as much as Eolas can expect to get for it. Eolas can set the price to whatever they want. They could ask for a $1000 billion if they wanted to. MS wouldn't pay, but they're entitled to ask for it.

  • Second Major Victory for Microsoft in as many days (Score:5, Informative)

    by moofdaddy ( 570503 ) * on Wednesday March 02, 2005 @05:19PM (#11828350) Homepage
    This is the second major victory for Microsoft in two days. Slashdot didn't pick up the story but yesterday M$ won a pretty large appeal in the 9th circuit which dealt with patent and license issues having to do with ActiveX. While we all know ActiveX is terrible and its usuage has created one of the larger security holes known to man the victory is still a bad one because of the message that it sends to the lower courts. That issues involved a plug in developers access to APIs and whether they were allowed to create whatever they want. It is very legal jargon heavy and hard to summeraize the real implications, thats why I think it recieved such little press. The big suprise is that this happend in the 9th circuit where they are normally very friendly to the common man.

    The bottom line is that M$ is on a winning streak and we need to cross our fingers in the hopes that some judge is brave enough to step up against them.

    • Re:Second Major Victory for Microsoft in as many d (Score:1, Informative)

      by Anonymous Coward
      That was a little different though. In that case the company disregarded some of the policies set out in the API license. The question becomes in that case more whether lisense is legal or not, rather then how evil microsoft is.
    • Not all activeX is bad. I work for a company that does GREAT things with Active X http://www.advizorsolutions.com/ [advizorsolutions.com]
    • I'll admit I'm not the biggest MS fan in the world. However, if the situation were reversed, and MS was claiming to own the patent, I think a lot of peoples' tones would be different (i.e. hoping that MS wasn't granted the patent). I hate to say it, but I sort of hope MS wins, but with the outcome being that no one is awarded the patent. That way no browser will be (or potentially be) affected, whether it be IE, Firefox, Opera, or whatever. But that's just MHO...

    • I am very conflicted here , I feel M$ are buying justice , however on the EOLAS issue i feel slightly conflicted . I am aware that they have said they wouldnt use the patent on any open source project , however i feel this patent is just as wrong as the other software patents.
      The position i see EOLAS in is of a lose /lose for the OSS world , if they win it stands to support the idea software patents are a good thing , if they lose then well its another bouht victory for microsoft
      • i feel this patent is just as wrong as the other software patents.... if they lose then well its another bouht victory for microsoft

        How can you say those two things in the same post? Either the patent is wrong and MS deserve to win, or it's good and they deserve to lose. That's it, no other choices; this isn't about MS "buying a victory", it's about whether or not the patent is valid. It happens that in this instance, the patent holder has taken on someone that a) "we all hate" and b) has enough money to
        • As i do not belive that MS are winning on the grounds that they are right to do so, i feel they are winning by throwing money at the case.
          • I should of made myself more clear ,I do not feel the ends justify the means.
            Microsoft holds no moral highground here , and own far sillyer patents which they have held due to being able to keep the lawyers funded.
            I hate the idea of software patents , what i hate more is the fact that a corperation can buy justice , In this case i can see no good comming from either side achiving Victory
            also i do not see Microsoft changing their view on patents because of this , perhaps purchasing even more patents to assur
            • This is silly. In the US justice system, you have to spend money on your defense in order to win. If you don't spend money to keep your lawyers fighting for you, the other side wins and you're screwed. If you were up on phony charges and had the money to get a good lawyer that can keep you out of jail, would you refuse to "buy justice" and go to prison?
          • They lost in the trial court and all they "won" today is a re-trial.
        • I think the patent is wrong, and I want MS to lose.

          Why? So they see that patents have as much potential to harm them as other people, and start fighting against them.

          This patent is just as valid as, for example, the patent MS is holding over the WMV file format, that disallows anyone from making a tool from reading it. I'm not even talking about a patented codec, I'm talking about a patented file format.

          It would be idiotic for me to hope MS isn't hit by patents as much as they are hoping to hit other peo

    • "hard to summeraize"

      Undoubtedly ;^P

      From what I know of the Eolas case, MS is right (did I just say that?), so I hope they win. OTOH, the cynic in me says that only very rich companies will be able to afford justice.

      Oh well, I can still hope for an apple tree to fall on the chief executive assholes in Redmond.

    • Re:Second Major Victory for Microsoft in as many d (Score:4, Insightful)

      by The Bungi ( 221687 ) <thebungi@gmail.com> on Wednesday March 02, 2005 @05:43PM (#11828619) Homepage
      Really? What are you going to say when this case stands, Microsoft gets screwed on this patent and then Eolas turns around and tries to screw the Mozilla foundation, mmm? Are you going to cross your fingers as well?

      The president of Eolas once said he wouldn't go after Mozilla. If FF becomes popular enough, do you figure he's going to keep his "word"?

      You just keep crossing your fingers. Microsoft can afford to pay Eolas off. Your favorite cheap software foundations can't.

  • More Details.... (Score:5, Informative)

    by Rolan ( 20257 ) * on Wednesday March 02, 2005 @05:21PM (#11828367) Homepage Journal
    As usual, the news didn't give the full story. The judgement has been vacated and remanded, meaning that it's back in the District Court's hands to redo....

    From the ruling:

    In conclusion, because the district court improperly granted JMOL in Eolas' favor on Microsoft's anticipation and obviousness defenses and improperly rejected Microsoft's inequitable conduct defense, this court vacates the district court's decisions and remands for further proceedings on these issues. In addition, this court affirms the district court's claim construction of "executable application" and finds the district court did not err in its jury instruction with regard to the claim limitation "utilized by said browser to identify and locate." Finally, this court affirms the district court's holding that "components," according to section 271(f)(1), includes software code on golden master disks.

    • Re:More Details.... (Score:5, Informative)

      by angle_slam ( 623817 ) on Wednesday March 02, 2005 @07:15PM (#11829463)
      To further explain: first, JMOL means Judgment as a Matter Of Law. The trial court ruled that no jury could find in favor of Microsoft, so ruled on the case instead of the jury.

      The remand is primarily based on one piece of prior art, the Viola Browser developed by Pei-Yuan Wei. The trial court ruled that Wei abandoned his invention and therefore the browser was not relevant as prior art. The appeals court ruled that Wei did not abandon his invention, therefore the jury has to consider whether or not the Viola browser is prior art to the Eolas invention.

      If you want further details, Wei developed DX34 version of Viola and disclosed it to Sun engineers. He subsequently modified it and released the new version (DX37) to the public. The trial court ruled that the new version is a separate invention and constituted an abandonment of DX34. The appeals court disagreed, saying they are the same invention and thus the release of DX37 did not abandon DX34. (If Wei had abandoned his invention, it woiuld not be prior art).

      • I don't understand the relevance of whether or not Wei abandoned his invention. As I understand it, any publicly known disclosed example of the same invention constitutes prior art. It doesn't matter whether it is patented or has been put into the public domain. The issue of abandonment has to do with abandoned patent applications, that is, with whether patent applications that the applicant did not pursue to the granting of a patent constitute prior art with respect to subsequent patents. The argument is

        • Sure. Section 102(g) states: "A person shall be entitled to a patent unless-- (g) (2) before such person's invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it." Basically, Eolas argued that, even if Wei invented it first, he abandoned the invention.

          The prior art issue is under 102(b). According to the court: "Public use [under 35 U.S.C. 102(b)] includes any use of the claimed invention by a person other than the inventor who is un

  • A victory? (Score:1, Troll)

    by TyfStar ( 747185 )
    Maybe I'm just reading this wrong, but tell me this:

    "Microsoft on Wednesday claimed a victory in a high-profile Web browser patent dispute, as an appeals court partially reversed a lower court decision that left the software giant exposed to $565 million in damages."

    MS is left having to pay $565 million, and they claim this a victory? What exactly would be a loss??

    • Re:A victory? (Score:3, Informative)

      by Big_Al_B ( 743369 )
      The lower court decision left M$ vulnerable to damages. The appeals court partial reversed it. A poorly written sentence indeed.
    • The way I read it

      a lower court decision that left the software giant exposed to $565 million in damages

      So this lower court decision is now reversed, and MS is no longer exposed to the penalty.
    • "The lower court's ruling, which left MS exposed to a $565 million damages claim, has been partially overturned."

      That wording is hopefully a little clearer.
    • "Microsoft on Wednesday claimed a victory in a high-profile Web browser patent dispute, as an appeals court partially reversed a lower court decision that left the software giant exposed to $565 million in damages."

      MS is left having to pay $565 million, and they claim this a victory? What exactly would be a loss??

      It should be read as:

      "Microsoft on Wednesday claimed a victory in a high-profile Web browser patent dispute, as an appeals court partially reversed a (lower court decision that left the softwa
    • "MS is left having to pay $565 million, and they claim this a victory? What exactly would be a loss??"

      Dude, if you have to ask you can't afford it.

  • Firefox (Score:1, Troll)

    by Ossus_10 ( 844890 )
    I just hope this doesn't lead to a decline in Firefox use. Or maybe I do.......The more people that use Firefox, the more spyware, popups, and holes are exposed.........I hope everyone moves back to IE. Ossus
    • But this would be a good thing wouldn't it? The more problems they find the more they can fix making it a better peice of software in the long run.

  • No patent (Score:1, Insightful)

    by Virtual Karma ( 862416 )
    Eolas pretty much have the patent on the way the modern browser works. I feel that this patent should not be granted. I no body has this paptent to their credit. It would be a BIG loss to the browser world
    • "I no body has this paptent to their credit."

      I may be an insensitive clod, but please, put down the crack pipe. I try to understand stuff through spelling and grammar issues, but I have zero clue WTF you were trying to say there. O_o

  • Legal Code (Score:4, Insightful)

    by Doc Ruby ( 173196 ) on Wednesday March 02, 2005 @05:31PM (#11828489) Homepage Journal
    More and more lawsuits are winding up in "News for Nerds". Of course it's sharkbait, tainting geeks with the blood in the water. But maybe a diet of geeks, vs. ex-jock corporate fatcats, will fatten the lawyers on more constructive food for thought. Can the days of legislative lintian reports be that far off?

  • The enemy of my enemy is not my friend (Score:5, Insightful)

    by etymxris ( 121288 ) on Wednesday March 02, 2005 @05:33PM (#11828512)
    But in this case, Eolas is the enemy of everyone. If Microsoft does well here, it's not a victory so much for Microsoft as it is for everyone. I wish them luck.
    • What if Microsoft screws up and bombs out royally on purpose? $565 million now would be a very small price to pay for protection later.
    • >But in this case, Eolas is the enemy of everyone.
      >If Microsoft does well here, it's not a victory
      >so much for Microsoft as it is for everyone. I
      >wish them luck.

      I disagre.

      Two things make me disagree.

      1. A good way to make bad laws go away, is to follow them to the letter.

      2. Anything that hurts microsoft and their IP lawsuit business model is good.

      Eolas lawsuit against ms is good because it hurts their pro-patent arguments, it may also weaken their browser monopoly.

      Should Eolas win in the l
      • Yeah, it is always a hard call when you see two things you're opposed to fighting. My reasoning is this:

        MS is a right pain, but it is a right pain that is dying slownly as OSS catches up in all of its profitable markets.

        Patent litigation is a right pain, and it is a right pain that is gaining momentum. A few wins for the likes of Eolas now will create hundreds of these little parasitic companies sucking the life out of anybody producing software.

        I don't see how producing better software can win the pat
        • That is a somewhat optimistic interpretation of an Eolas win on your part. Remember that the law itself in on trial every time.

          If Eolas wins, this means the judge and the jury have decided that the law makes sense. Software patent litigation would thereby gains wide recognition, the definition of what constitutes prior art would be narrowed, and this case would make jurisprudence.

          In other words this would be terrible.
          • [Eolas winning = law makes sense] ... IOW this would be terrible.

            I think you missed my argument. Say Eolas wins and all the other things you say come to pass. As a result the market adjusts (by greatly increasing the number of parasitic companies).

            The next step is for a lot of previously large companies to go bankrupt due to constant patent litigation. I'm betting Sony would be first, since they seem to enjoy rolling over (treating the US litigation as a cost of doing business, much as US companies tr
  • This is from the www-talk@w3.org [w3.org] mailing list archives:

    From: Mike Doyle

    Please note from our Web site that, in almost all cases, Eolas' Weblet-related technologies will be licensed free of charge for noncommercial use.

    Does this mean that the only case that it DOES violate it is if you're Microsoft?

    I dislike a lot of things about Microsoft, but it looks to me like they were exercising on Mr. Doyle's offer. I could be wrong..
    • In ALMOST all cases.

      That's just a smokescreen for "we won't start suing again until we run low on bucks".

      If they win, what are they going to do with the cash? Use it to prop up their legal department. Then they can do what SCO dreamed of doing - send a bill to every end user of every owner of every computer. This patent goes beyond simple web browsers.

      It can concievably cover anything that "seamlessly loads plugins based on input data". Photoshop loads a TIFF filter if you open a TIFF file, Winamp loa
      • The big push now is for global "IP" protection. It's a major trade issue,and the largest players are all pushing for it. I'd say it will be pretty hard in the next few years to keep software patents out of the international scene, or get rid of them where they already are, especially the US where we are producing less and less tangibles. They just are not going to give up on them. worse than the Terminator. Even with the new shiny and allegedly improved "open source" heavyweights like IBM, you don't see the
    • Non-commercial isn't the same as Open Source. Almost every linux vendor could be considered commercial. And would the license issued be transferrable and all that? I'd want to see a better definition of the license terms rather than someones word before getting too excited about their kindness...

  • Ruling overturned the exclusion of Pei's prior Art (Score:5, Informative)

    by morganew ( 194299 ) * on Wednesday March 02, 2005 @05:59PM (#11828765)
    (Notice, we filed an Amicus brief on this case, and are happy with the court's finding because it matches our brief)

    Specifically, the ruling overturned the district court's incorrect assertion that the Viola Web browser, and specifically DX34 was "abandoned suppressed or concealed" and therefore did not qualify as something that could be shown to the jury as an example of prior art.

    To quote from today's ruling "The district court's conclusion inappropriately narrowed the definition of "invention" as used in section 102(g)"

    The court goes on to note that a change in version number does not necessarily constitute a new invention and that version DX37, which they tried to demo to the court, just represents an improved version of Wei's invention.

    In our brief, we argued that that the intellectual property rights of all software developers must be protected, including those developers who wish to give their inventions away without charge.

    Those who wish to donate their work to the "IP commons" to enlist others for help and feedback are not abandoning it for others to patent. Software developers often proactively choose to do this as an act of beneficence or as a part of their software development process. This was certainly the case for Pei-Yuan Wei, the inventor of the Viola browser that should be considered prior art to invalidate the Eolas patent.

    • Re:Ruling overturned the exclusion of Pei's prior (Score:1, Interesting)

      by Anonymous Coward
      For a variety of reasons I have to post AC, but I'm not here to rant. One thing that stuck me as not troubling, so much as notable, was the panel's explicit statement that the trial judge could revisit the issue of intent to deceive in the unenforceability analysis. Granted, the usual verbage about appellate courts' reluctance to disturb findings of fact was present, and also granted that perhaps I am reading more into the statement than was intended, but it struck me as the panel essentially telling the
    • This sounds eminently sensible. I wish I had mod points.
  • Maybe he like Cuba. Sheesh.

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