Patents of Mass Destruction

Youd think the news that Microsoft Corp. faces a half-billion dollar judgment against it in an intellectual-property lawsuit brought by a one-man company and the University of California would have competitors of the Redmond Menace cackling with glee.

And, indeed, there may have been some electronic high-fives exchanged when the news of Eolas Technologies Inc.s victory first reached the IRC channels and message boards frequented by open-source aficionados and others who have felt oppressed by the Microsoft hegemony. But the celebration for many was short lived, once they started mulling the possible consequences of the decision by a federal jury in Chicago.

The jury upheld the claim of infringement by Microsoft on the University of Californias patent (U.S. Patent # 5,838,906), licensed to Eolas, which describes a "(d)istributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document." In other words, it covers running programs external to the Web browsers code to process data from the Internet and display it in the browser.

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Eolas claimed, and the jury agreed, that this covered the ActiveX controls Microsoft supports with Internet Explorer, as well as other applets and plug-in programs that run within the IE browser.

As a result, Microsoft now has to make changes to Internet Explorer that will change how it handles elements like Macromedia Flash animations, Java applets, Real streaming-media content and Apple QuickTime movies. Sources at companies that may be affected by the ruling tell me Microsoft met with representatives of Sun, RealNetworks, Macromedia, Apple and other companies to brief them on the projected impact of the changes, but it didnt yet announce the form that those changes could take.

The verdicts reach may extend still farther. Members of the World Wide Web Consortium (W3C) are examining whether the patent will require changes to the bodys standards for HTML. Depending on how Eolas decides to pursue its now-affirmed intellectual property rights, it could also mean major modifications will have to be made to other browsers, such as Opera, Netscape, Mozilla and Apples Safari. (Eolas currently has no products of its own, aside from the collection of patents to which it holds rights.)

Considering how broad Eolas claim is—it covers anything that runs within a hypertext document—youd think there would be plenty of ammunition out there with which to shoot it down. But Microsoft somehow failed to produce any "prior art" during the course of the trial to undermine the legitimacy of the patent. That doesnt mean that there isnt any, but it shows what a hard time anyone else will have knocking down Eolas claim down on a technicality.

Microsoft can afford to shrug off at least the initial judgment of $521 million—it can pay that out of cash on hand. But the rest of the software community cant afford to brush off the consequences, because it may roll back a decades worth of advances in Web application standards.

In a post to the Apache Software Foundations e-mail list, Java guru Noel Bergman said that if Eolas patent covers as much as it seems to, "the idea of an Open Source browser is rendered meaningless." And Simon Phipps, Sun Microsystems chief technical evangelist, said in his Weblog, "When it becomes impossible to create a pool of open, shared standards for common use ... our future will stall—corporate ownership is not an option."

If anything, the Eolas patent verdict demonstrates a rapidly emerging crisis in intellectual property governance. Software and process patents, such as Amazons infamous "one-click" patent (and the equally infamous and even more ridiculous patent #6,368,227, "Method of swinging on a swing") demonstrate how the underfunded and overtaxed Patent and Trademark Office has lost its grip on the pace of change (and reality) and is becoming an impediment to, rather than an agent for, progress.

Even if the Eolas verdict is reversed on appeal, similar intellectual-property claims (like those of SCO) will continue to be used by the well-lawyered as a deterrent to innovation by parties both large and small. Its time for Congress to take a good, hard, lobbyist-free look at software patents, if not for an outright rejection of them.

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