Eolas Founder Responds
Eolas founder Mike Doyle, who developed the browser technology while working at the University of California at San Francisco, also expressed confidence that the court would uphold the validity of his patent. "Thats the only issue that remains to be decided," Doyle said. "If we prevail on that issue, then we have won." Other attorneys specializing in intellectual property law said Wednesday that the appeals court decision still leaves Eolas with an advantage in any retrial, but that the ultimate outcome still could go either way."A reversal on the issue of patent validity is something that was probably widely expected, or at least not a surprise in the community, because the real issue is whether the evidence about the Viola Web browser should have been put before the jury," Glassman said. The general rule is that anything that might have a strong bearing on the case should be presented to the jury and not thrown out by the court, Glassman said. But Microsoft is still at a disadvantage because it has to go before the next jury with the courts affirmation in the earlier trial that it had infringed on the Eolas patent, he said. "Its a significant opinion anytime an appeals court reverses" any part of a $520 million trial judgment, said Douglas Winthrop, intellectual property attorney and partner with the law firm of Howard, Rice, Nemerovski, Canady, Falk and Rabkin in San Francisco. The decision means that Microsoft has a chance to go back to the court and present legal arguments about validity of the patent based on whether it was anticipated by other inventions and whether it was based on "inequitable conduct" by the inventor, if it can prove that Doyle knew of the prior existence of the Viola browser when he applied for the patent for the Eolas technology. Click here to read more about Microsoft trying to reverse the verdict against it. The jury decision also was controversial within the broader Internet technology development community. The World Wide Web Consortium and other parties persuaded the Patent Office to review the patent validity based on "prior art." Glassman said the patent office could "pull the rug out from under" Eolas case if it reviews and then invalidates its patent. Editors Note: This story was updated to include comments from Eolas, the University of California and third-party attorneys. Check out eWEEK.coms for Microsoft and Windows news, views and analysis.
"Fundamentally, I would say this is really a reprieve for Microsoft rather than a total victory," said Steven Glassman, a partner with the New York firm of Kaye Scholer LLP.