In what could be good news for the Web, the Director of the US Patent and Trademark Office has ordered a re-examination of the ‘906 patent, which was the subject of a patent infringement lawsuit this summer brought by Eolas against Microsoft.
Issued in 1998 to Michael Doyle of Eolas Technologies, the patent (#5,838,906) covers the ability to embed and control applications (or objects) in a web browser. Doyle succeeded in obtaining a $500M judgement against Microsoft. In the aftermath, Microsoft said that changes to the browser were necessary to work around paying royalties on the patent, and that these changes would impact developers who create and maintain web pages. Many believe that the patent would also affect other technologies such as Flash and Java as well, which are launched from a browser.
On October 23, the World Wide Web Consortium (W3C) filed a request for re-examination, citing prior art that defined the early HTML standard, written by Tim Berners-Lee and Dave Raggett. In their appeal to the Commissioner of the PTO, the W3C said: “The cost to the larger World Wide Web community of fixing the problems created by such a change to Internet Explorer is incalculable, but would likely require changes to millions of Web pages, as well as changes to Web page authoring tools and other software and systems designed for the World Wide Web.” It called this kind of “disruption” to the web “completely unwarranted, in view of the patent’s invalidity.”
Apparently, the PTO responded to this request, saying “a substantial outcry from a widespread segment of the affected industry has essentially raised a question of patentability.” This order, issued on October 30, reviewed the claims and declared that the prior art introduced by Berners-Lee and Raggett raised “a substantial new question of patentabity.” The order, signed by Steve Kunin, Deputy Commissioner of the US PTO, called for a reexamination of all claims relating to the ‘906 patent.
A patent lawyer that I spoke to said that the quick response by the PTO was unusual, and he thought it was a good sign. He said that the order seemed to give a clear indication of support for the claims against the patent. We’ll now have to wait for a patent examiner to examine the evidence in more detail and rule on the patent.
If you want to follow the adminstrative procedures, go to http://pair.uspto.gov/cgi-bin/final/home.pl and the type in the application number: 90/006,831.
Note: I testified in the trial this summer on behalf of Microsoft’s claim that the early Viola browser developed by Pei Wei was prior art for this invention.
What do you think?