Netscape recruits Mozilla in suit

Sue Netscape, and you sue the Net.

That's the message Netscape Communications is attempting to get across with a campaign launched today through its recently established Mozilla organization.

After creating Mozilla with the stated goal of fostering and guiding a community of developers working with the newly open Navigator source code, Netscape is now marshaling that community to help it defend against a patent infringement lawsuit from network and desktop computing integration firm Wang Global.

Wang brought the suit against Netscape in October last year, based on patents the company filed on March 30, 1983, according to a Mozilla page on the matter. According to Mozilla, Wang is claiming infringement of patents that let users save and rename Web pages to their hard drive using the "Save As" command under the file menu; save and rename Web bookmarks; and save file formats (like .pdf or .gif) and later retrieve and display them.

Wang declined to comment on the litigation.

To defend against the suit, which was filed in U.S. District Court for eastern Virginia, Netscape must prove that the technologies in question existed before March 30, 1983. Third-party inventions that predate patents are known under the law as "prior art," a status that can invalidate patents.

While Netscape says it already has identified prior art relevant to the Wang case, the company is marshaling the strength of its Mozilla numbers to produce more evidence of prior art--and to send a clear message to companies contemplating future patent litigation.

"We're going to use Mozilla to set an example," said Dave Rothschild, Netscape's vice president of client products. "If you're going to file a bogus patent claim, know that you're going up against a whole community of Net developers in proving it."

On its front door, Mozilla suggested a connection between the lawsuit and Wang's recently expanded alliance with Netscape rival Microsoft.

"Wang sues Netscape? Web pages are patented videotext frames?" the Mozilla front door asks. Below an image hyperlinked to a page maintained jointly by Microsoft and Wang, the Mozilla text adds: "Ohhhh, now we get it."

"The implication is that it is odd that Wang is suing us and not Microsoft," Rothschild said. "That functionality exists in other people's products besides Netscape's."

Wang may not be suing Microsoft now, but it has in the past. In 1993, Wang sued the software giant, claiming that Microsoft's object linking and embedding (OLE) technology infringed on Wang's patents. The 1995 settlement of that suit resulted in a patent cross-licensing agreement that covers the browser technologies at issue in the Netscape suit, according to Microsoft spokesperson Mark Murray.

"There is an obvious reason Wang is not pursuing Microsoft at this time," said Murray. "It's because these technologies are covered in an agreement."

One reason that Wang may be suing over 15-year-old technology is that its patents will expire soon. Software patent attorney Christopher Palermo of McDermott, Will, and Emery noted that Wang's patents are scheduled to expire in four years.

"It often occurs that a company becomes aware of a product that could be covered by its patents and therefore could be a source of licensing revenue," Palermo said. "Wang has had troubled times in the past, and I wouldn't be at all surprised if someone had dug through its patents to see what they could dredge up for licensing revenue."

Palermo said Mozilla's call to arms was not unprecedented and that it could be effective on several fronts.

"I think it's a clever way to leverage an existing resource of developers," Palermo said. "Netscape may also be saying to developers that they may be doing themselves a favor by helping out because if they derail this suit, Wang won't be able to come after them as well."