WinInfo Daily UPDATE, May 18, 2004

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In the News

- Microsoft Wins Delay in Eolas Case

==== In the News ====

by Paul Thurrott, [email protected]

Microsoft Wins Delay in Eolas Case

A US District Court of Appeals judge prolonged Microsoft's seemingly never-ending patent-infringement battle with Eolas Technologies this week by granting Microsoft a deadline extension for its appeal. The extension is the most recent in a series of developments that have dramatically improved Microsoft's position in the case. Earlier this year, the United States Patent and Trademark Office (USPTO) announced that it would reexamine the validity of the Eolas Web browser patent, which appears to cover competitor-created technology that predates the patent.
But the problems between Eolas and Microsoft aren't going to go away soon. Last August, Eolas won a $521 million jury judgment against Microsoft. The decision caused an outcry in the Web development space; industry experts petitioned the USPTO, providing information that they said proved that Eolas wasn't the first company to come up with the technology it patented. Eolas, which is the exclusive licensee of the University of California's browser plug-in patent, says it owns the rights to the technology that Microsoft uses in Microsoft Internet Explorer (IE). And other browser makers--such as the Mozilla Foundation and Opera Software--would presumably be next on the Eolas hit list if the company succeeds in its suit against Microsoft.
In February, the USPTO said it would reexamine the Eolas patent based on evidence of "prior art" that the World Wide Web Consortium (W3C) Web standards body provided. Most onlookers expect the USPTO to revoke the Eolas patent, which would give Microsoft the evidence it needs to have the court throw out the jury verdict. And, indeed, the USPTO's preliminary findings acknowledged the existence of prior art that could invalidate the patent. The USPTO's final ruling is still forthcoming. Eolas, of course, doesn't agree with the W3C or the USPTO. Last week, company representatives issued a filing in response to the USPTO investigation that denounced the prior-art claims. An Eolas representative was outspoken in his condemnation of the investigation. "The court case was a slam dunk," he said. "Part of the interest in the \[USPTO\] reexamination is that Microsoft is using it essentially as a back door to win the case when they couldn't win it in court."
But it stands to reason that Microsoft wouldn't have lost the case if the court had considered the prior-art claims. Ultimately, the USPTO, not the US District Court of Appeals, will decide this case.

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