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March 2, 2005 5:03 PM PST
Appeals court revisits Eolas decision
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March 16, 2004
The patent infringement case, brought by the University of California and its Eolas Technologies spinoff, had riled the Web over potential ripple effects that could have forced changes in millions of Web pages that use plug-in applications like Macromedia Flash and Adobe Acrobat that run inside the browser.
Both sides claimed victory in the mixed ruling, which reversed part of the lower-court ruling, affirmed other parts of it, vacated the decision as a whole and sent it back for a new trial.
"We cleared most of the serious issues, so I would consider this a victory for the university," UC spokesman Trey Davis said. "On the issues that would have mattered most to Microsoft, they lost."
Microsoft said that, on the contrary, the company had won on the most important points, particularly its claim that UC's patent was predated by similar technology by artist and software engineer Perry Pei-Yuan Wei.
"It's a huge victory," said Andy Culbert, Microsoft's associate general counsel for patent litigation. "The essence of our defense was that this patent was invalid, based on the good work done by Pei Wei, and the court of appeals has completely vindicated our assertions. We are looking forward to establishing the invalidity and unenforceability of this patent when the case is remanded."
The appeals court said the lower court had incorrectly kept Microsoft from showing the jury the Viola browser. That browser was written by Wei in 1993, a year before the filing date of the UC patent, when he was a student at the University of California at Berkeley.
According to Microsoft, Viola constituted "prior art," or technology both older than the patent and similar to what it claims. A finding of prior art can invalidate a patent.
But the jury in the lower court didn't hear about Viola because district court Judge James Zagel ruled that Wei had "abandoned, suppressed or concealed" his browser, therefore invalidating it as prior art.
The appeals court on Wednesday ruled that because he showed the browser to a group of Sun Microsystems engineers, Wei couldn't be said to have suppressed or concealed his work. The appeals court also said Wei's posting of a new version of Viola did not constitute "abandonment," as the district court had ruled.
The appeals court reversed the lower court's decision that Viola didn't anticipate the UC patent, sounding a testy note in sending the issue
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I mean by this that one court says the patent is valid, then another court says its not. If a patent if filed then it should be valid. If the idea is not a valid for a patent then it should have never been granted. Maybe the patent office is over worked and can't do it's job, but I only see that the system doesn't work.
I'm sure that patents hold some validity in some part of the comerce world, but not in software.
know it today. Each evolutionary step in the
development of software would be predicated on
royalties or waiting on expiry of the patent. In
the pathological case, for the first 17 years
everyone would pay a penny for incrementing a
number, another penny to instruct the machine to
do it in a register variable, a penny (or 17
years) to implement a stack, etc.
Every piece of software has two things in common:
it is dependent on software produced before it,
and it is no more than expression of a logical
series of thoughts. Complexity in software comes
from taking simpler functions, then defining a
new function that adds a small amount of logic in
combination of them. Ultimately, after enough
iterations, you have expressed a very complex
series of logical steps and instructions -- but
the fact remains you've done nothing but record a
thought process in a machine-readable form.
At least in the US, we have laws that cover that
sort of thing, and they are called copyrights.
Copyright makes more sense, since, unlike patent
law, their is a standard that requires a certain
threshold of creativity and expression, and it
permits for their to be independently derived
works that are similar.
But copyright, particularly modern copyright,
falls apart too when applied to software. The
process itself cannot be said to be committed to
a fixed medium (as copyright requires), only an
expression of it. Additionally, when you do
record software to a medium, it is, in fact,
indistinguishible from a very large number (also
an arbitrary series of bits). It doesn't make
sense that people can claim ownership of a number
(or collection of numbers). Worse, software has a
viable commercial life of only a few years, yet
copyrights could easily extend over 100 years,
and patents for 17 years.
What if we patented addition? Then, as that was
about to expire, multiplication? How about
floating-point arithmatic? How many cycles of
waiting for patents to expire on the most basic
of software algorithms would it take to get as
far as Windows XP? If the code that was in CP/M
were patented as it may be possible to do today,
chances are we would just now be seing MS-DOS.
Eolas started from research in UC to allow the visualization of medical data in a web-browser. Unlike submarine or fraudulent patents, they actually did create the technology and tried to commercialize under Eolas it after licensing it from UC. Their product was called the Webrouser.
Now think about it. Microsoft owned the OS market, Netscape owned the browser market... and you come up with a browser with a plugin... WHAT is the strategy? Obviously the browser itself was inferior Netscape and IE. The obvious strategy is to license it to Microsoft or Netscape... now if not for patents... what protection do you have??
We've seen exactly what WOULD'VE happened as what did happen, they both decided to ignore Eolas and
copied the technology.
So think about it.. if YOU developed some really innovative technology, are you going to say.."here microsoft, take it and leave me with nothing?"
Look, please don't extrapolate software patents to silly ideas such as "ooooh.. if we patent software, we can patent the XOR, NOR or addition/subtraction routines" that discussion is not relevant to this topic... Eolas developed a sophisticated technology out of years of UC research and just because it is a widely used technology, doesn't mean it shouldn't be patentable. (You KNOW you're paying Phillips a few cents every time you buy/burn a DVD for their patents don't you?)
BUT, if Pei Wei's browser predates, the patent... then so be it.
In the hardware world patents are considered a cost of doing business, most products are protected by patents and the price factors in a few cents that go to the patent holder. I don't see why it should be different in the software world. Microsoft makes bloody huge magins on their software, a few cents wouldn't have killed them... they just chose to play hardball in this case.
What makes hardware different from software that took years to research and develop? Sure software is protected by copyright, but as we saw, apparently bigger companies prefer to copy or develop the thing internally once they know that it works.
Eolas/UC invented the technology and prove that it works, now the big companies want to use it but not license the core software... what are companies in Eolas' position to do if not for patent protection? (How are you going to argue that copyright works in this case?)
Sure there are some aspects of software patents (ie. business method patents) that I have issues with but I think the concept of software patents itself isn't flawed.
Because the inventor on the EOLAS patent knew about the Pei Wei prior art, he had an obligation to disclose the Pei Wei prior art to the Patent Office while his application was pending. Because he "fox-holed" the prior art, the court will punish him by declaring his patent unenforceable. As it should.
The thing to be afraid of is that EOLAS will settle the lawsuit by giving MS a cheap license under the patent. This will eliminate MS's incentive to pursue having the patent declared invalid and unenforceable. Then EOLAS can assert its patent against other companies who may not have the resources to pick up where MS left off.