Saturday, October 10, 2009

Eolas sues Adobe Systems, Google, Yahoo, Apple, eBay and

In an article on the lawsuit by Eolas against Adobe Systems, Google, Yahoo, Apple, eBay and for infringement of the claims of U.S. 5,838,906 and U.S. Patent No. 7,599,985, Steven J. Vaughan-Nichols writes

Actually, maybe it's not the patent trolls I hate so much as it is the U.S. patent system, which has approved the mindlessly simple idea that you can start a program from a Web page. Eloas' [sic] patents have been upheld by the brain-dead PTO at least three times now by my count. That's despite the fact that no less a figure than Sir Tim Berners-Lee, the inventor of the Web, sent a letter to the PTO in 2003 presenting what he said was prior art that should invalidate Eolas' '906 patent.

Berners-Lee did write then-USPTO Director Dudas, complete with a claim chart prepared by New York IP firm Pennie & Edmonds (now gone), and Dudas initiated a director-ordered re-examination. Eolas survived the re-examination without amending a single claim. Such a complete skate occurs in only about 10% of all re-exams.

Vaughan-Nichols neglected to mention that the Eolas patent comes to us by way of a professor at the University of California at Berkeley.

Vaughan-Nichols neglected to mention that Microsoft, with all its resources, could not invalidate the Eolas patent in litigation,
meaning that one does not have only a braindead USPTO. Vaughan-Nichols mentioned an appeal by Microsoft, but didn't mention that Microsoft already settled the case.

He concluded:

Our only hope to avoid this outcome, since the PTO sure isn't going to reverse its decisions now, is if the Supreme Court kills off software patents once and for all by adopting and expanding the Bilski case ruling, which knocked the teeth out of business process patents. If that happens, Eolas' patents are toast and Web developers can get on with creating new, innovative content and ways to get at it instead of worrying about bad patents emptying their wallets with legal and licensing fees.

Please, Supremes! Put us out of our Eolas misery! I'm begging you!

Steve, be careful what you ask for. In Festo, the Supreme Court took an anti-patentee CAFC ruling, and made it more pro-patentee. The Supreme Court might alter Bilski in ways you are not envisioning.

**See also

Microsoft settles with Eolas

***The Motley Fool noted:

Or on the other side of the pendulum, we could end up with a looser or nonexistent framework of patent protection for these abstract concepts. Businesses would compete on how well they can put good ideas to work rather than on how their lawyers can protect those ideas. That might be bad news for some innovators, but I believe we would end up with more innovation, less courtroom wrangling, and a healthier digital economy. On the whole, that's my preferred outcome because it's better for almost everyone. At the very least, putting a leash on patents with "vague and uncertain boundaries" would be a boon to innovation in the industry.


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