Try, Try Again: Microsoft Asks For Another Eolas Re-Exam
from the trying-anything dept
Microsoft, it seems, won't give up in the Eolas case. If you don't recall, this was a situation where a patent holding firm claimed they had a patent on embedding apps into browsers as plugins -- something that (once again) calls into question how "obvious" some patents are. However, the USPTO claimed the patents were valid and the Supreme Court refused to hear the appeal of their case -- so it looked like Microsoft might actually have to pay up more than half a billion dollars (the actual case still needs to return to the lower court where the court will also look at whether or not the patent seems valid). However, some of Microsoft's lawyers are now requesting another re-examination of the patents, suggesting that there's additional prior art that the patent owners did not disclose. The request for re-examination is ex parte, meaning they're doing it as a third party, but it's not hard to see Microsoft standing behind them requesting that this be done. In the meantime, of course, Microsoft has introduced their workaround, which makes their browser a bit less useful (how's that for innovation?). Either way, the very length of this legal battle shows yet another problem with the patent system. Any disagreement takes years (and a ton of legal dollars) to resolve -- often delaying further innovation drastically.
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What if Patents Cease to Exist?
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No Subject Given
Normally I'd agree with you.. but in this particular case it's Microsoft. What innovation?!!
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Hello???
That said, I still maintain that the current patent system functions pretty well for most other areas of technology.
Also, I fail to see how forcing someone to come up with a solution to their problem that does not infringe a patent claim deters innovation. Indeed, it fosters innovation by forcing the the devlopment of technology that is not covered by a patent claim. Yes, that technology may not be the easiest or the best way, but in many cases it is nonetheless successful. I.e. Betamax v. VHS. VHS is the lessor of the two systems, but it prevailed and became a huge economic success.
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Re: Hello???
Still, it does a good job of highlighting the point I've been making over and over again. No one really knows what's "better" until the market points out what the real needs are. So, why aren't we letting the market decide? Instead, we're told that someone who patents a single invention can go out and prevent others from competing at all. Instead, if new products had to actually compete in the marketplace then real innovation occurs at the consumer level, rather than back at the invention level.
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obviousness
First of all, do not be quick to neglect that (irrelevant of obviousness issues) Microsoft could have avoided high litigation costs and time by conducting due diligence beforehand and either redesigning their software at little expense or agreeing to a fair license
Second, you often confuse "obviousness" with "invention conceivable through ordinary engineering skill." In other words, in accordance with the current "suggestion" test of obviousness in patent law, what is obvious is what one of ordinary skill would objectively be able to discern without undue labor.
You are confusing obviousness is this sense with obvious after undue application of engineering labor. The patent system is not meant to merely protect the genius, but to protect one who exerts energy into solving a problem - exertion beyond reasonable research and development in view of what is known in the art.
I don't necessarily disagree with raising the bar of allowability, but i think "obviousness" is thrown around a bit carelessly.
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Re: No Subject Given
I've never allowed myself such language on-line before, especially on a logged environment, but I speak for everybody who's tired as HELL by all people who bash Microsoft just 'cause all do it, and therefore it's cool, even if it frequently is out of context and makes no sense:
FUCK YOU DUDE.
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Re: Hello???
BTW, you're totally right and this is why it'll be ridiculously funny when BluRay and HD DVD come out, so that both camps what people needed all along: the good old DVD format... and thus both will fail (except maybe as a PC data recording media).
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Re: obviousness
(patentman holds breath waiting for Mike to make his "tautological" argument.)
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Re: obviousness
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Re: Hello???
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No Subject Given
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Innovation MicroSoft's style
The Eolas patent dates back to mid 90's when it was already widely discussed all over the Internet. I am not crazy about Eolas patent, but it happened very early in the internet age and although it doesn't seem like a billion dollar patent to me, I should also note that it is MUCH better than 95 % of patents issued to Ms.
The recent re-exam confirmed its validity.
So , what is microsoft complaining about ?
They've been watering down patent quality for years on purpose - to make really breakthrough patents held by small entities less valuable.
Now they found themselves on the wrong end of the stick. Sorry MS, the patent system is the same for everybody.
I must also add that MS was caught on many occations plainly stealing ideas from small guys.
Want examples? Stack, burst.com, alacritech, amado etc. etc. etc.
Usually they are offered a cheap license early on (as in this particular case), but for some reason they ALWAYS choose to steal from small guys... Must be some corporate culture...
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Re: Hello???
Easy, that computer programs not be patentble. End of story.
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Copyright does NOT protect
print pack"C*",split/D+/,`echo "16iII*oU@{$/=$z;[(pop,pop,unpack"H*",
)]}EsMsKsN0[lN*1lK[d2%Sa2/d0X+d*lMLa^*lN%0]dsXx++lMlN/dsM0
Now the different sentence implementing the same RSA algorithm:
#!/bin/perl -sp0777i$/=unpack('H*',$_);$_=`echo 16dioU$k"SK$/SM$nEsN0p[lN*1
lK[d2%Sa2/d0$^Ixp"|dc`;s/W//g;$_=pack('H*',/((..)*)$/)
Now tell me, all of you software patents bashers, do these look the same from a copyright perspective ? Cause they surely do the same thing.
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Re: Innovation MicroSoft's style
I am not making any judgment on whether this technology is obvious or not. It's not a simple matter. But I will say this - in my experience, engineers will believe that 99% of patent publications are obvious. Not because it's true, but because the idea makes sense and is simple to them. However, put yourself in the position of the inventor. Suppose you stumble across an extremely simply, but novel concept which could dramatically impact a field. Would you want some twit in the patent office to subjectively rubberstamp your invention as obvious. Who's job is it to determine how marketable an invention is, how much future revenue it can create or how much effort went into creating it.
Believe it or not, it is relatively difficult to overcome an obviousness rejection without creating estoppel or reducing the broadness of patent protection. I know this is not a fair rebuttal, but when someone arbritrarily claims that an invention is obvious, you have to ask, "if its so obvious, why is there published information suggesting its construction?"
again, Im not taking any sides on whether the eolas patent is in fact obvious. but, if the problem is a lack of representative publication on software in the public domain, then fix the problem where it lie.
for everyone that does (mostly because you dont understant it) think the patent office is shot and the obviousness bar is too low, i would like to challenge you to think of a better test. bare in mind that the test should be objective (a "panel of experts" would deem obvious everytime). i would honestly love to hear some new ideas.
and to avoid redundancy, it may be wise to read current practice on obviousness - see MPEP chapt. 700 and 2100 (mostly 2100) - you may gain some appreciation for the complexity of the issue
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