Rising Storm Over Internet Plug-In Technology Patent

With the recent damages award of US$521 million for patent infringement against Microsoft Corp. (Microsoft), the web community, including the World Wide Web Consortium (W3C), has rushed to support the position of the software company. In 1999, Eolas Technologies (Eolas), a one-person software firm, sued Microsoft claiming that the way its Internet Explorer browser deployed external (plug-in) applications infringed Eolas' US Patent No. 5,838,906.   At the end of the trial, a federal jury found for Eolas.   Microsoft has since declared an intention to modify its browser software in order to circumvent the Eolas patent. Microsoft's approach to deploying plug-in applications is embodied in Hypertext Markup Language (html), the standard software language for encoding web pages.   Plug-in applications, such as streaming audio and video, advanced graphics and other special purpose tools, add services to a "plain vanilla" web page.   Proposed Microsoft changes to Internet Explorer may result in incompatibilities between millions of existing web pages and the browser adopted by over 95% of web users.   Other software producers such as Macromedia Inc. and Adobe Systems Inc. may also find themselves making hard choices between modifying their products, taking a licence from Eolas, or defending a similar patent infringement suit. In an extraordinary step, the W3C, a consortium of some 400 web-related organizations, has written to the US Patent and Trademark Office (USPTO) urging a re-examination of the Eolas patent.   The W3C letter purports to submit a list of publications predating the Eolas patent which were not taken into consideration by the USPTO when the Eolas patent was being examined for patentability.   The letter further points out the potential devastating effect and huge cost to the web community if the Eolas patent were to be enforced as it stands. It may be fairly said that the web community waits with unprecedented anticipation for further developments. For another report on this issue, see: http://news.com.com/2009-1023-5082004.html?tag=nl. For the letter from the W3C Director, Tim Berners-Lee, inventor of the Web, see: http://www.w3.org/2003/10/27-rogan.html. Summary by: Peter Wang To pose further questions you may have about the potential impact of this litigation or Internet-related patents generally, contact Douglas Deeth (ddeeth@dww.com) or Peter Wang (pwang@dww.com).