US Patent and Trademark Office Nixes Eolas Browser Plug-in Patent

Friday March 5th, 2004

Reuters is reporting that the US Patent and Trademark Office has invalidated a patent covering browser plug-ins. The patent, jointly held by Eolas Technologies Inc. and the University of California, has been struck down in a preliminary decision, which Eolas has sixty days to respond to. Eolas successfully sued Microsoft for infringing on the patent last year, forcing the software giant to outline drastic changes to Internet Explorer that would severely impact upon the user experience of the Web. MozillaZine reported on the lawsuit and the Mozilla Foundation's response to it last October. Thanks to Zachariah for the news.

#12 There's prior art, but...

by leafdigital

Monday March 8th, 2004 2:48 AM

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Regardless of that, it's frankly an obvious thing to do - and no, it doesn't just seem that way after the fact.

You cannot patent ideas (uh at least traditionally - I know the US is trying to extend the patent system to patent every possible concept, idea, atom, element, subatomic particle, and so on...) so though, for example, you could patent the wheel, you could not patent the idea of a method for going somewhere more quickly than walking. Similarly, you can patent the telephone, but you can't patent the idea of a machine that lets you talk to somebody else at a distance.

The test for obviousness should be: if you start with the idea (what the object *does* - in the case of a wheel, makes it easy to move things, in the case of Eolas patent, makes it easy to embed software objects in a Web browser), and you ask a qualified professional in the relevant field to come up with possible ways of doing that - do they immediately come up with something that would be covered if the patent was granted?

For example, imagine HTML has just been created and people are playing around with Mosaic - hey cool! you can have gifs on a page! Then somebody comes up with an idea (non-patentable) - ok what if you could put random software programs in the page? Now ask a random developer who's aware of how HTML works, how the technology works... supposing you wanted to carry out that idea, how would you do it?

They know HTML, so they know it means you've got to have a tag on the page... that tag's got to contain some mechanism for identifying either the type of data or the program to be used... then when the browser encounters that tag it will launch the program automatically, running it within the area in the scre- oh right, we're going to need width and height on that tag...

Et voila, the OBJECT tag. Of course, some better design would've been a good idea, but that didn't happen in the real world either :)

It's my belief that the vast majority of software patents fall within this area - if you ask any competent developer to come up with a solution to the same problem, it's likely that they would come up with the 'patented' solution or a similar one. There are only a few that don't, essentially those involving complex mathematical algorithms (such as audio or video compression, or cryptography - and by cryptography I mean the original algorithms, like the RSA patent that expired recently, not the various applications of cryptography to other problems).

This is why software patents should not be granted, or at least not be granted without a very significant review process involving experienced software developers.

EOLAS is a particularly obvious case of predatory patenting (whatever the denials of the company) - more will probably follow and I sincerely hope they'll be shot down as well.

There is indeed no connection with the SCO case, which is a completely different (though equally dishonest) abuse of the law (precisely which law they are attempting to abuse is not even clear, but it's not patent law... uh, I think...)