Eolas shakedown: Don't feed (patent) trolls


It's patent-troll time once again, folks. A one-person* company that adds zero economic value is suing a huge laundry list of companies who use the Web. The company claims it invented a common Web page feature, so it should be entitled to licensing fees. What sort of crazy is this? Explanations in today's The Long View...

Opinion, by Richi Jennings.

You may be feeling some déjà vu, because the company in question is Eolas. This is the same patent troll that shook Microsoft down in 1999 for daring to introduce Active-X. It's the company about which SJVN wrote:

Eolas, like other patent trolls, has taken an obvious idea [and] somehow managed to con the..Patent and Trademark Office. .. The early Web browser Viola, which dates to 1992, was the first Web browser I know of that included the ability to [do this]. .. Eolas didn't apply for a patent until Oct 17, 1994.
Now, everyone else gets to be smacked around..in the U.S. District Court for the Eastern District of Texas, which is the happy hunting ground for patent attorneys.

I don't use the pejorative term "patent troll" lightly. Eolas makes no products**, and provides no services. By its own admission, it was created to "commercialize" a single patent: "Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document," U.S. patent #5,838,906 (in 2002, Eolas filed a revised patent application, #7,599,985, with slightly expanded claims).

As before when I opined about bogus patents, we'll look at the claims made by the patents, and critique them using the obviousness and prior-art tests:

  1. Would the invention have been obvious to an averagely-skilled practitioner of the art?
  2. Has anyone demonstrated this before?

Essentially, the patents' claims pivot on the ability to embed a program into a Web page. That program might be wholly local, or it might have a client/server construction. It might use conventional, synchronous communication with a server, or it might use something like AJAX to exchange data. But the meat-and-potatoes of the claims is the embedding of an application in a page.

This is how browsers run plugins. These days, it's most often used to embed a Flash animation or video into a page; in times gone by, you might have expected to see a Java applet or PNG image appear using a plugin.

So it's pretty much an open-and-shut case, right?
While you can argue whether of not the idea would have been obvious in 1993, there's clearly prior art, so the patent is legally invalid.

As "father of the Web" Tim Berners-Lee wrote:

[D]isplaying, or embedding, an image generated by an external program in the same window as the rest of a Web page was already described in the prior art. .. The claims of the..patent are plainly not patentable given this prior art.

And, perhaps more importantly, without embedded objects, how could I bring you great shared cultural moments such as this?..


But what happened with the old Microsoft case?
To cut a long story short, although the appeals court ordered a retrial, because Microsoft messed up its demonstration of prior art, Microsoft decided it had had enough and decided in 2007 to settle out of court, for a sum thought to be $100 million.

Chump-change for Microsoft, but this can only have had the effect of encouraging Eolas to see whom else it could extract money from. Never has the phrase "don't feed the trolls" been more apt.

Oh, and shame on the regents of the University of California, who stand to gain 25% of any money raised in this latest blatant shakedown of the industry. Eolas is working in part on the UC System's behalf, as its single staff member, Michael Doyle, claimed to have invented Web object embedding while working at UCSF.

If there's any possible chink of light
in the dark ludicrousness of this affair, it's that this might be the case that  finally causes the U.S. to reform its patent system. (It's a system that, at least for software patents, has been broken ever since an appeals court ruling some years ago in favor of Oracle. This tragic ruling required the U.S. Patent and Trademark Office to lower its approval threshold.)

If that's too much to hope for, then perhaps we can at least look forward to the day when the Eastern District of Texas stops being such a safe haven for patent trolls.

What do you think? Comment below... 

*- Eolas was a one-person company for the first 12 years of its life.
**- Eolas claims it has a product called AnatLab, which went into beta test in 2008, but has never been heard of since.

Richi Jennings, blogger at large

Richi Jennings is an independent analyst/consultant, specializing in blogging, email, and security. As well as The Long View, he's also the creator and main author of Computerworld's IT Blogwatch, for which he has won ASBPE and Neal awards on behalf of IDG Enterprise. A cross-functional IT geek since 1985, you can follow him as @richi on Twitter, pretend to be richij's friend on Facebook, Encircle richij on Google Plus, or just use good old email: TLV@richij.com. You can also read Richi's full profile and disclosure of his industry affiliations.

Copyright © 2012 IDG Communications, Inc.

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