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University fires back at Microsoft in browser battle

Software giant's appeal is meritless, says University of California, as the sides squabble over plug-in patents.

The University of California hit back at Microsoft in its pitched patent battle over fundamental Web browsing technology.

The university system and its one-man software spinoff Eolas on Friday filed a brief with the U.S. Court of Appeals for the federal circuit, in Washington, D.C., to counter Microsoft's request for an appeal in a patent infringement case that has rattled the Web, from site authors to browser vendors to standards groups.

Last year, Microsoft got socked with a $521 million judgment after a jury found it guilty of infringing on Eolas's system for running plug-ins, applications like Macromedia's Flash animation software and Adobe Systems' Acrobat document reader that run inside the Web browser.

Since then, Microsoft has engineered a version of its browser that it says would skirt the patent's claims, but that browser would break millions of Web pages written the old way. Microsoft has put that browser on ice pending resolution of the infringement battle.

This year, the monetary stakes have risen. In August 2003, a lower court granted UC and Eolas $1.47 for each of the 354 million copies of the Windows operating system that included Microsoft's Internet Explorer browser between Nov. 17, 1998, when the patent was issued, and Sept. 30, 2001. In January, the court added $45.3 million in prejudgment interest, bringing UC's award to more than $565 million.

The fight over the Eolas patent is progressing on two fronts. While Microsoft appeals the decision in court, the U.S. Patent and Trademark Office is also re-examining the patent following appeals by many in the Web industry, including plug-in makers and the World Wide Web Consortium (W3C), a key standards body.

In its initial appeal, filed last month, Microsoft said the district court had wrongly limited evidence about the "Viola" browser by software developer and artist Pei Wei. That browser, Microsoft claimed, pre-dated Eolas's patent and should constitute what patent law calls "prior art," or technology older than a patent, that would invalidate it.

In its response, UC attacked Microsoft's Viola argument and said two versions of the Viola code introduced at trial were irrelevant to Eolas's invention, known as the '906 patent.

"The Viola browser is not the same as the 906 invention," said Trey Davis, UC's director of special projects and new media. "Neither browser was in the public domain, so neither can invalidate the 906 invention."

Microsoft has until July 30 to reply to UC's response. After that, both sides will appear before the court in a hearing likely to be scheduled for the fall.

Microsoft said it hoped for a new trial.

"We respectfully contend that the district court erred on a number of issues related to prior art and claims construction," Microsoft representative Jim Desler said. "Based on those issues, we've requested the judgment of infringement be vacated or reversed and remanded for a new trial."