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Appeals court ponders Microsoft patent case
December 9, 2004 -
Eolas, Microsoft make their case--again
December 8, 2004 -
University fires back at Microsoft in browser battle
July 19, 2004 -
Microsoft appeals Eolas decision
June 8, 2004 -
The Eolas-Microsoft case--patent ending?
March 16, 2004
(continued from previous page)
back for a jury's consideration.
"This court hesitates to disturb the district court's role in assessing evidence, but anticipation is a question of fact," the decision said. "Accordingly, this particular determination lay within the province of the jury."
In another win for Microsoft, the appeals court ruled that the lower court had erred in dismissing the company's claim of inequitable conduct against Eolas inventor and former UC researcher Mike Doyle.
At the district court proceedings, the company had claimed that Doyle, when he filed the patent application originally, had misled the U.S. Patent and Trademark Office by withholding information about the Viola browser. The lower court had thrown out the charge based on its finding that Viola didn't constitute prior art.
By reversing that decision, the appeals court opened another avenue for Microsoft to prevail in the new trial. Attorneys familiar with the case said that if Doyle is found to have deceived the patent office, the patent will be rendered unenforceable.
The World Wide Web Consortium (W3C), which successfully urged the patent office to reconsider the UC patent in an ongoing re-examination, hailed Wednesday's ruling as a step in the right direction.
"This is very good news," said Daniel Weitzner, the W3C's technology and society domain leader. "It's one more step toward certainty that this patent is not going to threaten interoperability on the Web. It doesn't close the matter either for Microsoft or for UC, and it has no particular impact in the PTO re-examination. But it decreases the risk to the Web that much more."
Microsoft lost on two key points. The first was a dispute over whether or not the patent applied to programs that couldn't be run independently, such as spellchecking components and other DLLs, or dynamic link libraries. The district court had ruled that the patent did apply to those kinds of programs, giving the UC patent much broader application, and the appeals court upheld it on that point.
Microsoft also lost on the issue of whether or not copies of IE distributed abroad after being copied in a foreign country from a "golden master" disk were subject to U.S. patents.
The appeals court upheld the lower court's determination that those copies are indeed subject to the patent. Foreign distribution accounted for about two-thirds of UC's now vacated $565 million judgment.
One patent attorney not involved in the case said that while the decision was on the whole a win for Microsoft, the company's options would be significantly narrower the second time around at the district court.
"I think that the decision is a reprieve for Microsoft, rather than a full victory," said Steven Glassman, a patent attorney with Kaye Scholer in New York City. "While Microsoft can obviously prevail at a new trial, the outcome is uncertain. Microsoft would start with a significant disadvantage before a jury, since the appeals court affirmed the finding of infringement."
This time, Glassman said, Microsoft will only be able to argue that the patent is invalid.
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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.
I would be interested to hear from companies like Microsoft, IBM, and Novell how patenting ideas furthers creativity and innovation. I would like them to explain to me why we need anything more than copyrights for software. I would like someone to explain to me how patenting an idea that stops someone else from creating a competing software product is good for competition.
I don't think these are unreasonable question.
Currently, 'software patents' are, in fact, being used for little more than stifling competition, and attempting to extract revenue from obvious evolutions of 'basic-concepts'.
Writing software is a practice of constructing a functional-whole out of basic-components. Just as producing ANY other form of creative-construction is.
And, legally, this type of 'creation' is supposed to be specifically excluded from the 'Patent' process (in much the same way that a 'writer' cannot 'patent' starting a sentence with the word "The", ...because such a use is simply a basic part of the general process of creating literary-works which might be utilized by any writer).
Furthermore, nothing in the 'patent' arena has anything to do with 'piracy', ...or achieving reasonable compensation for the work of producing, and selling, a product (those aspects are protected by 'copyright' and 'property' laws).
And finally, few are so stupid as to fear the tired accusations of "...communism", or the assertion that, somehow, without COMPLETELY-UNREASONABLE levels of CONTROL being handed directly to a small, but powerful group of currently-successful businesses, ...ALL creativity and production will somehow, magically, ...cease.
Such, childish arguments might have had some sway, when certain so-called "IP-industries" started making them, ...but MOST people have long since figured-out just how ridiculous such statements are.
Just because a program is proprietary doesn't mean it uses patents. Copyrights protects them, along with whatever license they use to restrict users further.
Plenty of people make money in open source. You think Linus Torvalds has made nothing from Linux? Sure, a lot of people volunteer their time to help out projects, and there is nothing wrong with that.
You make the mistake that open source is no cost. That is untrue, you can charge for open source if you want, just like you can give away proprietary software for free.
As was noted, your communist comments are juvenile and completely without merit. Patents are not needed in software, they are used for one thing, and one thing only:
stifling competition.
Now tell me, how is that capitalistic? I don't care what it is, any patented software would never have existed if the pioneers of the software industry had patented their ideas. Patents are cannibalistic. They take the work of what others have done and shared with the world, package it up and try to claim it as their own and try to stop anyone else from using it.
Imagine if the first graphical word processor was patented, or the first web browser. Where would those types of programs be today? How many years set back? The reason computing has advanced as far and as fast is through the sharing of ideas.
Where would computing be if George Boole had patented his work in mathematics? Where would the world be if Newton or Liebniz had patented their ideas? In fact, both independently invented differential and integral calculus. The advancement in mathematics that calculus brought is a huge reason why technology has advanced so much since their time. Their ideas, were built on others work, and so on. Innovation never happens in a vacuum, patents are anathema to innovation.
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.
Secondly, it is not a 'technology'. Software is merely a collection of execution statements for hardware. Everything in their claims is directly built on what others have done, and shared with the world. Why should they exclusively benefit from work not their own? When it comes right down to it, there is no fundamental difference between a word processor, operating system or even chat room. Sure it takes longer to write a OS then it does to write a chat room, but the difference is just like that of a novel( or perhaps a series of novels) and a short story. One is bigger then the other, but both are merely a collection of words that tells a story.
Hardware is a tangible product. Software is not. At least no more then a novel is. You can design and build digital circuitry, software is really no different then a letter written on a word processor. It is true that all digital circuitry are built from the exact same basic logical gates(NAND and XOR more often then not), but it is still different from software. The basic building blocks: flip-flops, multiplexors, encoders, adders, latches, are built into larger, but still basic components(ie registers). But the end product can be far different, but yet a processor can be patented and someone else can still design and build their own processor. Software is different. Being able to patent a dynamically linked library, executable or whatever is like getting a patent on a NAND gate. What is next? Patenting TCP/IP?
Software patents are illegitimate, period.
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.