IE patent endgame detailed

A federal judge last week rejected Microsoft's post-trial claim that Eolas had misrepresented the facts in the patent case, which claimed the software giant had stolen browser technology relating to plug-ins. The ruling came after a $521 million verdict against the software giant last month, and ends Microsoft's first attempt to challenge the result.

Several more post-trial motions remain to be dispensed, and Microsoft doesn't expect a final judgment in this round to be handed down until October or November. After that, Microsoft has 30 days to decide whether to appeal, which it has pledged to do.

Still, last week's loss on claims of "inequitable conduct" heightened the sense that not only Microsoft but the entire Web may soon be forced to make substantial adjustments--and that pages around the Web and on private intranets will have to be rewritten to work with an altered IE.

"If you're currently using a plug-in, you will have to change your pages quite significantly," said one person familiar with Microsoft's post-verdict plans. "There might be tools to help you do so, but currently they don't exist."

Regardless of whether the court orders Microsoft to change IE, the software giant has been conferring with its own engineers and those of companies that rely on the browser's ability to automatically launch and display multimedia programs with plug-ins--an ability the court held to be, in its current form, an infringement of the Eolas patent.

Now Microsoft, while expressing optimism that it will ultimately prevail over Eolas in the courts, is advising Web authors to take precautions and prepare for a post-Eolas world.

"We believe we are going to be successful, but the wrong thing to do is to sit back and wait for the legal process to play out," said Michael Wallent, a general manager in Microsoft's Windows division who ran the IE team for versions 5.5 and 6, and who has been involved in the Eolas defense since the suit was filed. "There are technologies that are already used today (that aren't covered by the verdict) and all we are saying is, given the choice, use the technologies that are already available to you."

Those techniques involve using scripting languages and the set of technologies marketed as dynamic HTML (DHTML) to launch external applications--a commonly available and familiar method that Microsoft does not believe infringes on the patent.

Eolas and its lawyers did not return calls seeking comment.

Wallent cited CNN.com as an example of a site that uses Macromedia Flash--a technology many consider particularly vulnerable to the patent's claims--in a non-infringing way.

While Microsoft dispenses advice and stays mum on details of the workarounds it is contemplating for IE, sources who attended the company's recent strategy session with the World Wide Web Consortium (W3C)--hosted in San Francisco by Macromedia--described various methods the company proposed for evading the particulars of the Eolas patent in launching applications like Macromedia Flash, Java applets and Adobe's Acrobat Reader.

According to these sources, Microsoft said at the meeting that it believed a simple dialog box inserted between the selection and the launch of a Java applet or an ActiveX control would maneuver IE out of the patent's definition of an "automated interactive experience."

Microsoft also is said to have proposed other ways to launch applications in a way that could not be held to infringe on the patent, but would avoid the ungainly dialog box solution.

One such option would move the data to the Web page itself, rather than pulling it from an external source. In Microsoft's view, attendees said, the patent only covers a situation in which the Web page called up data located elsewhere. The company is said to have told attendees that it believes so-called inline data falls outside the Eolas patent claims because it is described in the HTML protocol published in 1991--three years before the initial Eolas patent filing.

To answer complaints that such a method would weigh down pages with heavy data loads, Microsoft proposed shifting that data to a separate frame.

While declining to comment on the specifics of the meeting or its plans for IE, Microsoft did warn that the Eolas patent threatened more than just Internet Explorer.

"This is not an issue just for IE," said Wallent. "This is a potential issue for Netscape Navigator, for Opera and for other browser vendors. This is an industry issue."

One attendee of the meeting who asked not to be named said that while Microsoft's workarounds were technically promising, their legal soundness was uncertain.

Worse, this attendee said, the implementation of the workarounds would require a huge amount of work on the part of Web authors.

"When you think about this, having to go around the patent highlights the stupidity of the patent system," he said. "Everyone in the field is very saddened by the whole thing, that we have to go through this exercise. The W3C has worked very hard to make the Web remain patent free and this might be the one thing that screws it all up. It's really very frustrating." Microsoft has suffered another legal setback in the patent dispute with software developer Eolas and is now advising Web authors on workarounds, as new details emerge of its plans to tweak Internet Explorer.

A federal judge last week rejected Microsoft's post-trial claim that Eolas had misrepresented the facts in the patent case, which claimed the software giant had stolen browser technology relating to plug-ins. The ruling came after a $521 million verdict against the software giant last month, and ends Microsoft's first attempt to challenge the result.

Several more post-trial motions remain to be dispensed, and Microsoft doesn't expect a final judgment in this round to be handed down until October or November. After that, Microsoft has 30 days to decide whether to appeal, which it has pledged to do.

Still, last week's loss on claims of "inequitable conduct" heightened the sense that not only Microsoft but the entire Web may soon be forced to make substantial adjustments--and that pages around the Web and on private intranets will have to be rewritten to work with an altered IE.

"If you're currently using a plug-in, you will have to change your pages quite significantly," said one person familiar with Microsoft's post-verdict plans. "There might be tools to help you do so, but currently they don't exist."

Regardless of whether the court orders Microsoft to change IE, the software giant has been conferring with its own engineers and those of companies that rely on the browser's ability to automatically launch and display multimedia programs with plug-ins--an ability the court held to be, in its current form, an infringement of the Eolas patent.

Now Microsoft, while expressing optimism that it will ultimately prevail over Eolas in the courts, is advising Web authors to take precautions and prepare for a post-Eolas world.

"We believe we are going to be successful, but the wrong thing to do is to sit back and wait for the legal process to play out," said Michael Wallent, a general manager in Microsoft's Windows division who ran the IE team for versions 5.5 and 6, and who has been involved in the Eolas defense since the suit was filed. "There are technologies that are already used today (that aren't covered by the verdict) and all we are saying is, given the choice, use the technologies that are already available to you."

Those techniques involve using scripting languages and the set of technologies marketed as dynamic HTML (DHTML) to launch external applications--a commonly available and familiar method that Microsoft does not believe infringes on the patent.

Eolas and its lawyers did not return calls seeking comment.

Wallent cited CNN.com as an example of a site that uses Macromedia Flash--a technology many consider particularly vulnerable to the patent's claims--in a non-infringing way.

While Microsoft dispenses advice and stays mum on details of the workarounds it is contemplating for IE, sources who attended the company's recent strategy session with the World Wide Web Consortium (W3C)--hosted in San Francisco by Macromedia--described various methods the company proposed for evading the particulars of the Eolas patent in launching applications like Macromedia Flash, Java applets and Adobe's Acrobat Reader.

According to these sources, Microsoft said at the meeting that it believed a simple dialog box inserted between the selection and the launch of a Java applet or an ActiveX control would maneuver IE out of the patent's definition of an "automated interactive experience."

Microsoft also is said to have proposed other ways to launch applications in a way that could not be held to infringe on the patent, but would avoid the ungainly dialog box solution.

One such option would move the data to the Web page itself, rather than pulling it from an external source. In Microsoft's view, attendees said, the patent only covers a situation in which the Web page called up data located elsewhere. The company is said to have told attendees that it believes so-called inline data falls outside the Eolas patent claims because it is described in the HTML protocol published in 1991--three years before the initial Eolas patent filing.

To answer complaints that such a method would weigh down pages with heavy data loads, Microsoft proposed shifting that data to a separate frame.

While declining to comment on the specifics of the meeting or its plans for IE, Microsoft did warn that the Eolas patent threatened more than just Internet Explorer.

"This is not an issue just for IE," said Wallent. "This is a potential issue for Netscape Navigator, for Opera and for other browser vendors. This is an industry issue."

One attendee of the meeting who asked not to be named said that while Microsoft's workarounds were technically promising, their legal soundness was uncertain.

Worse, this attendee said, the implementation of the workarounds would require a huge amount of work on the part of Web authors.

"When you think about this, having to go around the patent highlights the stupidity of the patent system," he said. "Everyone in the field is very saddened by the whole thing, that we have to go through this exercise. The W3C has worked very hard to make the Web remain patent free and this might be the one thing that screws it all up. It's really very frustrating."