Patent politics

Silicon Valley companies are used to thinking of mighty Microsoft as the enemy, but a patent suit that may place a crushing burden on the Web has many of them siding with the software giant on this one.

10 min read

Patent Politics

Rivalries set aside in defense of Internet Explorer

By Paul Festa
Staff Writer, CNET News.com
September 25, 2003, 4:00AM PT

During a recent meeting held at Macromedia's San Francisco headquarters, Silicon Valley companies asked a familiar question: What to do about Microsoft?

But the strategy event, sponsored by the World Wide Web Consortium, differed significantly from so many others, at which participants have typically gathered to oppose the software giant's power. This time, Microsoft was the guest of honor.


What's new:
A verdict against Microsoft in a patent infringement case is threatening to force significant changes to the Web's fundamental language, HTML.

Bottom line:
Microsoft's competitors fear they may be targeted next and that an enjoined IE browser would be prohibited from running their software plug-ins without awkward technology alternatives. As a result, Microsoft is finding some unlikely friends who have come to depend on its browser for distribution of their products.

For more info:
More news on patents.

"There's no doubt that there are some people who are happy to see Microsoft get nailed for anything," said Dale Dougherty, a vice president at computer media company O'Reilly & Associates. "But for those of us who are part of the Web, we wanted the browser to be on every desktop. And if it has to be a Microsoft browser, OK."

What a difference a patent suit makes. With one staggering loss at the hands of a federal court jury in Chicago, Microsoft has won the support--if not the sympathy--of nearly the entire software industry, from standards organizations to corporate rivals that are rushing to defend the company's Internet Explorer browser.

To some competitors and partners who have long been chafed by Microsoft's dominance, the verdict in the patent infringement lawsuit by one-man software company Eolas may initially have seemed an overdue victory--and one that achieved what the U.S. Department of Justice and the courts had failed to accomplish in regulating Microsoft under federal antitrust laws.

Instead, the verdict is increasingly interpreted as a potentially crushing burden on the Web, threatening to force significant changes to its fundamental language, HTML. Microsoft's competitors fear that Eolas' lawyers will target them next, and its partners--such as Macromedia and Sun Microsystems--worry that an enjoined IE browser would be prohibited from running their software plug-ins without awkward technology alternatives.

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The result has been a complex shift of industry dynamics that has turned many traditional alliances and rivalries upside down, prompting long-suffering competitors in the browser market to side with archrival Microsoft. At the same time, as the Eolas case has progressed, critics have portrayed company founder and sole employee Mike Doyle as an opportunist, despite his claims to be acting on behalf of the Web against a rapacious captor.

"If he has some altruistic motives here, I think it's time to step forward and describe them in more detail," one technologist for an IE competitor said. "Instead, his lawyers have said that everyone in the browser business should talk to them about getting a license. Maybe something good can come of this, but all in all, it's a very frustrating way to be saved."

Doyle counters that he wants only to correct Microsoft's misdeeds and liberate the masses from the oppression of Bill Gates' vast empire. "We, because of this legal victory, will be able to reinstate a whole new area for competitive development in the software industry. The developers and the competing entities out there to Microsoft, I think, will come to find that we are more of a friend than a threat," he said.

Microsoft might still pull out a victory at the appellate level. Moreover, even if Eolas' patent is upheld, the rest of the software industry may very well go with Microsoft's workarounds rather than face the prospect of abandoning development for the universally distributed IE.

Dale DoughertyFiled in 1999, the Eolas case drew international attention last month, when a U.S. District Court ruled that Microsoft's IE browser violated Eolas' Patent No. 5,838,906. The patent, filed on Oct. 17, 1994, and granted Nov. 17, 1998, covers a system that launches an application within a Web page.

The jury found that IE infringed on the patent through its inclusion of Microsoft's ActiveX technology, which Web authors use to launch and run plug-in applications such as Java applets, Adobe Acrobat documents and Macromedia Flash movies. Without ActiveX, the Microsoft browser would be unable to fully render a significant proportion of pages on the Web as well as on many corporate intranets.

This is why Doyle says his suit, if successful, will right many wrongs Microsoft inflicted in crushing upstart browser rival Netscape Communications. When Netscape launched in 1994, its founders saw the Web browser as a potential end run around the Windows juggernaut. Rather than having to code applications to work with Windows, the computing world could write to the open standard of the Web, Netscape and its investors reasoned--and the operating system would therefore be reduced to a mere commodity from a multibillion-dollar, Microsoft-controlled toll booth.

But Microsoft's yearslong assault on the browser market reduced Netscape from a standard-bearer (with more than 80 percent of the market) to a neglected unit of AOL Time Warner, which recently spun off its browser division as a nonprofit foundation. Industry veterans say there is every reason to believe that Microsoft will survive this challenge as well.

Guess what? Microsoft won
The software giant is
stronger than ever,
says Charles Cooper.

Given the daunting odds in any challenge to Microsoft, Doyle believes that his struggle exceeds biblical proportions. He said the often-cited comparisons to David and Goliath don't go far enough in conveying the ambition and travails of his quest, which he believes could reverse Microsoft's victory in the so-called browser war and break its control over much of the digital world.

"'David vs. Goliath' minimizes what we're doing," Doyle said. "Microsoft's use of our technology has been to put others out of business and to restrict much of the potential of the Web. And that is limiting our ability to get the full value for things that we created."

Many software makers might have supported Eolas when Microsoft was more vulnerable to browser competition years ago, but they now say Doyle's efforts have come too late. Since IE rose to market dominance, many software companies have come to rely on the browser's plug-ins for their businesses.

"We're no big fan of Microsoft, but I'm a big fan of the Web," said Dougherty, who is in charge of online publishing at O'Reilly and testified on behalf of Microsoft in its recent patent trial. "What worries people is that this is the first successful patent offense on the Web, and lots of other things could be coming."

Janet DalySome browser application makers look likely to come up with relatively easy workaround solutions. Adobe, for example, already offers two methods for reading a PDF (Portable Document Format) file that is posted on a Web page: One requires the IE technology to open a document within the Web browser, but the other shows the document in its Acrobat reader and therefore probably steers clear of the patent issue.

For others, the end of IE plug-ins could be disastrous. "Macromedia is clearly the most vulnerable," said Richard Smith, a noted computer security analyst and a participant in a W3C online discussion about the Eolas patent.

"If you look at embedded content in Web pages--that is, plug-ins--Flash has to be No. 1 by a mile," he said. "In my reading of the patent, the ways that Macromedia operates--and the things that it does--make it seem that it would fall under the patent."

Macromedia notes that it is hardly the only company with technologies that rely on plug-ins, pointing to applets that are written in Sun's Java programming language as just one example of other software that would be comparably affected by the patent issue.

As far as Doyle is concerned, none of the recently proposed workarounds would insulate companies from Eolas' patent claims. That argument has led Microsoft to return an accusation often made against itself, charging that Doyle is spreading "FUD"--fear, uncertainty and doubt--while he shores up support for his case.

"That's sort of a transparent and self-serving attempt by Mr. Doyle to put a cloud of uncertainty over the industry with respect to the breadth and scope of the patent," Microsoft spokesman Jim Desler said. "Any reasonable reading of the patent, as well as what Eolas said itself about the patent during trial, shows that the modest changes we're considering would avoid any infringement."

Whatever the scope of his patent, which is co-owned by the University of California, Doyle could theoretically wind up with the power to grant Macromedia, Adobe, Sun and the rest of the plug-in makers a simple alternative, which could take the form of an Eolas browser or an affordable license.

The prospect of having such a basic necessity as running plug-ins subject to the whim of Eolas has the industry in a near panic--not least among those organizations whose rules restrict or ban the use of patented technologies, such as open-source browser makers and the W3C.

Groups that advocate software that has open-source code say their licenses prohibit them from including patented technologies. The W3C in March reaffirmed its opposition to the use of royalty-encumbered technologies, after a lengthy public battle that ended in a near-ban.

"We have experience and proof that the specter of a fee stops standards development cold," W3C representative Janet Daly said. "It doesn't even have to be a firm guarantee. All you need is a little bit of fear, uncertainty and doubt that a developer is going to be slapped with a licensing fee, and the developer will leave that technology alone."

Ultimately, the fight between Microsoft and Eolas represents a larger battle between those who believe in patents and those who assert that these have no place in software. (Microsoft's position in this particular skirmish presents a certain irony, considering its own formidable patent portfolio.)

Mike Doyle

Doyle, who recently signaled his willingness to settle the case with Microsoft, maintains that antipatent licenses, policies and attitudes are paving the road to obsolescence.

"The standards people have to recognize that the creators of technology will continue to be able to acquire patents to protect their intellectual property, regardless of whatever standards they try to force down people's throats," he said. "They're just in denial, institutionally."

Doyle's fervent belief in the patent system may be in his genes. His grandfather used patents to protect more than 60 inventions in the papermaking industry, including a 1918 "Paper-Machine," a 1949 "Pulp Drainer" and a 1965 "Apparatus for Draining Fibrous Material."

"I'm just an inventor, and Eolas is a company whose mission is invention," Doyle said. "And we want to be able to make a living at invention, and build a business around invention. Why am I so focused on that? My grandfather was an inventor, and he made a living inventing printing processes that are still used today." 

Staking a claim
Yahoo: Web search

Eolas has attracted the patent spotlight because of the historic proportions of its $521 million judgment against Microsoft, the power and wealth of that target, and how its claims could affect the rest of the Web. But other threats loom for a wide array of technologies many Web developers take for granted. Here's a sample of Web-related patents worth watching:

Acacia Research and Friskit: Streaming media
Yahoo, through its proposed acquisition of Overture, looks likely to gain a formidable Web search patent arsenal. Before news of the buy broke, Overture had already fired shots in the form of lawsuits against Google and FindWhat.

"We'll add...Overture's impressive intellectual property portfolio of both algorithmic and sponsored search patents. These are some of the key reasons we have opted to acquire Overture."
--Terry Semel, CEO, Yahoo (July 14, 2003)
Overture to a patent war?

InterTrust Technologies: Digital rights management (DRM)
Acacia Research has successfully pressed its patent claims against an array of Web sites and site networks. While many of these are in the pornography business, the company says it's in negotiations with the biggest mainstream content providers as well. Most worrisome to the Web industry is the broad scope of the company's streaming media patents.

In addition, Friskit in July brought suit against both RealNetworks and Listen.com for violating its streaming media patents; Real closed its acquisition of Listen the following month.

"All the methods we have looked at for streaming audio and video over the Internet are covered by our patents."
--Rob Berman, senior vice president and general counsel, Acacia (Sept. 23, 2003)
Patent holder unplugs porn network
Broad patents on streaming media upheld
Patent suit hits Real, Listen.com
Streaming patent claims go to court

Amazon: Various technologies
The DRM company claims that Microsoft has infringed on its copy-protection patents in products ranging from Xbox to Windows. The technology is crucial to the dissemination of copyrighted media over the Web.

"InterTrust's core set of inventions--starting in the early to mid-1990s--anticipated what others, like Microsoft, now realize in 2002 is very important. InterTrust is prepared and has the resources to see this all the way through."
--Ed Fish, executive vice president, InterTrust (Feb. 7, 2002)
Microsoft loses key patent ruling
InterTrust broadens suit against Microsoft
Microsoft patent dispute heats up

Reader resources
Amazon has amassed a considerable patent portfolio and has kept busy expanding and enforcing it. Its claims cover ordering forms; retail chat; second-hand sales; one-click ordering; and auctioning Web advertisements. The company's patent ambitions are so broad that some analysts are scratching their heads over its intentions.

"Now, when people come up with new ideas, they're more apt to try to create a patent and wait for things to evolve. It may be something that they want to do or (that they want to) sell later."
--David Halprin, Internet analyst and consultant (March 24, 2003)
Amazon wins patent for ordering forms
Patent company sues Amazon
Amazon wins retail chat patent
Amazon patent bid targets used goods
Amazon makes bid for Web-ad patent
Amazon, Barnes & Noble settle patent suit

Related news
Eolas' patent
U.S. Patent and Trademark Office

W3C's Patent Advisory Group

Public discussion group on the Eolas patent

Q&A about University of California's role in the Eolas patent suit
UC Office of the President

Ray Ozzie's notes on "prior art," or a pre-existing technology that would invalidate a patent
Ray Ozzie's Weblog

Eolas says it would settle over IE
Eolas suit may spark HTML changes
IE patent endgame detailed
Will Microsoft tweak IE?
Will browser verdict snare others?
Microsoft ordered to pay $521 million
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