US Patent Office will review Eolas claim

Tim Berners-Lee plea has desired effect

By Kieren McCarthy, 12th November 2003

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The US Patent and Trademark Office will review the Eolas patent that puts claim to content embedded and run within a Web page.

Just two days after the father of the World Wide Web, Tim Berners-Lee, wrote a letter to the USPTO’s director on 28 October claiming that the patent was invalid, a re-examination was authorised and that order landed on a patent examiner’s desk on Monday, CNET reports.

"A substantial outcry from a widespread segment of the affected industry has essentially raised a question of patentability with respect to the 906 patent claims," USPTO deputy commissioner Stephen Kunin is quoted as writing on the order.

Berners-Lee in his role as head of the W3C provided the patent office with a lengthy document in which he claimed significant “prior art” - effectively proving that the current patent holders were not the first to come up with the idea and so their claim is invalid.

He warned that if the patent was allowed to go ahead, it would effectively wipe out a huge chunk of Net history as Webpages no longer functioned in redesigned browsers. Software developers would also have to rewrite their products to bypass the patent. And, lastly, the patent would undermine the very foundation of the Web - which has thrived largely because its protocols and technical standards are free and open.

Unsurprisingly, Eolas is not in total agreement. A lawyer for the tiny software company claims that the prior art referred to by Berners-Lee already formed part of the court case that Eolas won against Microsoft in August, and was not enough to invalidate the patent.

Microsoft was ordered to pay Eolas $521 million. The surprise decision caught many unawares and threatens to create a dangerous precedent as more software patent cases come through the court system. It sparked others - many of whom do not count Microsoft among their friends - into action.

Eolas’ founder Mike Doyle went further, accusing W3C of being motivated by an ideological dislike of software patents. “It's clear that they're trying to circumvent the rules to overturn a ruling by a jury in a federal lawsuit,” he was quoted as saying.

Doyle claims that his company’s step forward was to allow for interactive processing within a Webpage. Previously, he claims, the “EMBED” tag had only been used for static pages. Instead, the whole saga was blown up by Microsoft’s PR machine to help them avoid paying the huge fine.

However, while Microsoft can hardly claim to be whiter than white when it comes to using whatever methods it can to control markets, it is disingenuous to believe that opposition to this patent is merely to save the software company money.

Software patents, are, will remain, and are set to become ever more controversial as more court cases with potentially huge implications come to a head. Large numbers of amazingly broad and ambiguous patents have been approved by the USPTO and people on all sides see this case as setting the standard by which other patents will be dealt with in the future.

That the USPTO responded so quickly in requesting a re-examination demonstrates that there is a clear level of concern within the organisation itself. The FTC last month also piled in saying that patents should be harder to get and easier to review.

As the real implications of a relaxation on patent and trademark law in the 90s is becoming clear, it seems increasingly apparent that the system is unsustainable unless some clear and intelligent decisions are made early on.

What the USPTO eventually decides in this case will set the tone. Its importance cannot be underestimated.

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