Microsoft's new best friends

When the Department of Justice hauled Microsoft into court on antitrust charges in 1998, Silicon Valley was awash in schadenfreude. For years, Microsoft's Windows desktop monopoly had inspired equal doses of fear and distrust. It was time for payback, courtesy of Uncle Sam and your hard-earned taxpayer dollars at work. But all it took was a heretofore obscure patent to ignite a controversy to turn Microsoft into the people's choice.

In August, a federal jury ordered the software maker to pay $521 million to Michael Doyle, the founder of Eolas Technologies, for infringing upon a patent he was granted while working as a researcher at the University of California. The patent describes how a browser opens external applications produced by software providers.

Microsoft, which lost its first post-trial attempt to challenge the decision, plans to fight the verdict. In the meantime, the company is going to tweak its Internet Explorer Web browser to comply with the court decision.

But as computer industry executives pondered the business ramifications of the Eolas verdict, they began to get a cold sweat over the prospect of millions of Web pages--as well as products of independent software developers--winding up being incompatible with Microsoft's Internet browser.

Prominent among those giving voice to this worry is the World Wide Web Consortium (W3C), which earlier in the week urged U.S. Patent and Trademark Office boss James Rogan to invalidate the Eolas patent. Arguing that the patent "will cause cascades of incompatibility to ripple through the Web," W3C Director Tim Berners-Lee warned that Web browser developers would also be forced to pay to retrofit their own pages and software applications--even though they were not guilty of any infringement violation.

"What's more, the inevitable fragmentation and retooling costs caused by the ability to enforce this patent, which we believe to be invalid, cannot even be remedied by individual parties choosing simply to pay licensing fees to the patent holder," he wrote. "If some parties are granted a license while others either don't or can't obtain one, we will still be left with impaired functionality of the Web."

The Eolas case raises the prospect of millions of Web pages winding up being incompatible with Microsoft's Internet browser.

Whether any relevant prior art was considered at the time the patent was first examined and granted--the W3C argues it was not--is a matter the courts will need to adjudicate. But there's a larger truth beyond the legal minutiae attending this controversy: The Web flourished precisely because of global standards. Berners-Lee may be guilty of rhetorical overkill, but he's correct about the central importance of Web interoperability to the future of the Internet. Force Microsoft to rejigger IE, and that bedrock assumption goes out the window.

This is not mere nitpicking. In the inevitable scramble to conform to the demands of a post-Eolas world, my hunch is that things could get awfully messy. Admittedly, predicting the future is always a crapshoot, and the transition may go off without a hitch. But given the choice, I doubt you'd find many developers willing to take that risk.

The W3C's decision to petition the U.S. Patent and Trademark Office to reverse itself speaks volumes about where the computer industry is placing its bets.

The W3C's decision to petition the U.S. Patent and Trademark Office to reverse itself speaks volumes about where the computer industry is placing its bets.

For Microsoft, finding friends it never knew existed must come as a welcome surprise--even if they may only be friends of convenience. But self-interest makes for strange bedfellows, and this is a case in which even hard-core Microsoft bashers will agree--at least in this once instance--that what's good for Bill Gates also is good for the rest of the computer industry.