Opinion: Eolas might just sue every last, lousy company in creation

Do you want to know why I hate patent trolls? Let me tell you about Eolas Technologies. This company claims that it creates and markets technologies. It doesn't.

Eolas, like other patent trolls, has taken an obvious idea, somehow managed to con the U.S. PTO (Patent and Trademark Office) into giving it a patent, and is now suing Adobe Systems, Google, Yahoo, Apple, eBay and Amazon.com. Oh, and it's also suing Blockbuster, Frito-Lay, Office Depot, Sun, Playboy (Playboy!?) and 10 other companies.

Eolas claims that these companies have all violated its U.S. Patent No. 5,838,906 ('906 patent) and U.S. Patent No. 7,599,985 ('985 patent). And, as these patents are written, they have all violated them.

It would be hard not to. You see, the '906 patent broadly covers any mechanism that can be used to embed an object within a Web document. And when Eolas says "object," it means any applets or plug-ins. So, according to the company's lawyers' logic, Adobe's Acrobat and Flash; Apple's QuickTime; Microsoft's ActiveX Controls and Windows Media Player; and Sun's Java Virtual Machine, to name but a few, and any Web browser that automatically invokes such applets and plug-ins when you click on the appropriate link are in violation of Eolas' patent. In other words, pay up or we'll sue you. The '985 patent extends Eolas' broad claim to anyone who tries to add applet-like functionality to Web pages with AJAX (asynchronous JavaScript and XML) and similar Web development techniques.

Actually, maybe it's not the patent trolls I hate so much as it is the U.S. patent system, which has approved the mindlessly simple idea that you can start a program from a Web page. Eloas' patents have been upheld by the brain-dead PTO at least three times now by my count. That's despite the fact that no less a figure than Sir Tim Berners-Lee, the inventor of the Web, sent a letter to the PTO in 2003 presenting what he said was prior art that should invalidate Eolas' 906 patent.

Heck, I was the first guy to write about the Web in a popular publication, back in 1993, and I knew then that the Web was going to be used for more than just hypertext. There is nothing, I repeat nothing, about the idea that you can start a program to view non-text content from a Web browser that's patent-worthy.

The early Web browser Viola, which dates to 1992, was the first Web browser I know of that included the ability to call up programs to display non-text data. Eolas, which has never released a Web browser or a program of its own that I know of, claims that it didn't even show its idea until 1993. Eolas didn't apply for a patent until Oct 17, 1994. By that time, Marc Andreessen and Eric Bina had released Mosaic, the first popular Web browser, and the immediate ancestor of both Netscape and Internet Explorer. Guess what? You could call other programs in to render data Mosaic couldn't handle as well.

You get the picture. It's an obvious idea that other people already were using. And you know what? None of that matters.

Microsoft has fought Eolas over these patents for going on a decade now, to no avail. In the end, Microsoft gave up. While neither company will confess to how much Microsoft paid, it is unlikely to have been much less than the cool $520 million that Eolas had been awarded by a Chicago jury four years earlier, before Microsoft appealed.

Now, everyone else gets to be smacked around by Eolas' lawyers in the U.S. District Court for the Eastern District of Texas, which is the happy hunting ground for patent attorneys. In the end, Eolas and its attorneys will get richer, and everyone else will get a little poorer as the sued companies pass on the charges to their customers.

What a world!

Our only hope to avoid this outcome, since the PTO sure isn't going to reverse its decisions now, is if the Supreme Court kills off software patents once and for all by adopting and expanding the Bilski case ruling, which knocked the teeth out of business process patents. If that happens, Eolas' patents are toast and Web developers can get on with creating new, innovative content and ways to get at it instead of worrying about bad patents emptying their wallets with legal and licensing fees.

Please, Supremes! Put us out of our Eolas misery! I'm begging you!

Steven J. Vaughan-Nichols has been writing about technology and the business of technology since CP/M-80 was cutting-edge and 300bit/sec. was a fast Internet connection -- and we liked it! He can be reached at sjvn@vna1.com.

Copyright © 2009 IDG Communications, Inc.

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