Microsoft has won a patent for automatically downloading software from a network using the tag.
The patent is reinforced, say patent lawyers, because it not only quotes as a reference the Eolas Web plug-in patent which Microsoft has spent the past few years trying to overturn in court, but also the prior art that Microsoft used for its failed arguments in that case.
Patent number 6,802,061 describes "methods and systems automatically download computer software components from a computer network." It deals with the way that HTML tags can be used to point to dynamic or interactive multimedia components on servers.
Although some may see it as ironic that Microsoft cites the Eolas patent among its references, lawyers say this is necessary as part of the disclosure procedure, which should include anything known to the patent applicant or the lawyers prosecuting the application. Furthermore, it actually strengthens Microsoft's patent claim.
"In this case, it looks like Microsoft has done the right thing both legally and practically," said Dennis Crouch, patent lawyer at the US-based firm of McDonnell Boehnen Hulbert & Berghoff LLP, who also runs the Patently Obvious web site. "From a practical standpoint submission of the prior art references makes the patent stronger. When a patent issues, a presumption is created that the patent is valid over any reference cited on its face."
Thus, said Crouch, when Microsoft asserts its patent against alleged infringers, the defendants will not be able to rely on the Eolas patent or Pei Wei's work in their invalidity defence. "Essentially, by citing these references during prosecution, Microsoft has cleared its plate of the most troubling prior art."
Among the references cited by Microsoft's patent is the work of Pei Wei, a software developer and artist who created the Viola browser. Microsoft used the Viola browser as the basis for its US Court of Appeals case (the judge ruled it irrelevant at the original trial that resulted in the US$565m judgment).
Microsoft's patent also uses as a reference the work of W3C member Dave Raggett on HTML+, which spawned HTML 3.0; Microsoft and the W3C used Raggett's work to order the USPTO to re-examine the Eolas patent.
