Appeals court hears Eolas/UC v. Microsoft browser patent case [ip]

[Declan McCullagh <declan () well com>]

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Report from yesterday's oral arguments in DC:
http://news.com.com/2100-1032_3-5485882.html

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http://www.xcf.berkeley.edu/~wei/viola/aboutEolasMicrosoft.html

 Personal Comments on Eolas vs Microsoft, and the Viola Prior Art
Viola browser showing interactive application embedded in web page. 
Circa May 1993.

I've been asked about the Eolas vs Microsoft case, so I'll just post 
some of my comments on here for now.

I feel that this patent may stifle innovation more than people realize, 
and the people who will be hurt the most are us the end users, and the 
industry -- other browser makers besides Microsoft, and third party 
software makers who rely on browser extensibility. At the worst, if the 
appeal fails, frankly MS can bare this verdict, and change Internet 
Explorer. But then every other browser makers, browser accessory makers, 
including web page writers, as a matter of practicality must necessarily 
also change to conform to IE. This is an incredibly unproductive 
exercise, and may fragment and degrade the interoperability of the web. 
Of course, I suppose the positive but naive view is that in the effort 
to avoid this patent, people will innovate more to come up with work 
arounds.

The amazing amount of outrage on the internet regarding this case I 
think tells you something. Immediately after the verdict, some usual 
anti Microsoft people may have cheered for five minutes, then the 
implications sink in. It's rare that everyone (as far as I can tell), 
including the open source anti-Microsoft type folks are actually 
sympathetic to Microsoft in this case, against a company consisting one 
person (and team of lawyers). One's enemy's enemy is not necessarily 
your friend. They might be a even worse kind of enemy. And people are 
realizing this.

My personal experience in this is highlighted as follows. I can fill in 
the details later, but this will give you a quick idea. In 1991 I 
started writing the Viola web browser. Starting at this time, on the 
public world wide web development forum, and to some key players in web 
technology, I suggested that I will be teaching my viola browser 
embedded interactive technology. But of course it takes a while to just 
get the basic text/graphics browser working, before the more advanced 
embedded-in-page interactivity can be built. In April 1992, I made a 
released of the viola browser. By December 1992, I had embedded objects 
working in the Viola browser. We at O'Reilly and Associates gave demos 
to various people here and there. The best documented demo was in May of 
1993 -- We gave a demo and code to SUN Microsystems, of the viola 
browser showing an interactive three dimensional plotting object 
(mathmatical equation or 3D models) embedded inside a web page. I 
started releasing this code around fall of 1993 and early 1994. Eolas 
filed the patent in November 1994.

Now, as you probably know, Michael Doyle (Eolas's CEO and sole formal 
employee as I understand it), wrote to the net about his technology and 
eventually intent to patent this. So of course people (including me) 
wrote back informing him of prior arts. I'm not a lawyer but as I 
understand it one is supposed to disclose to the PTO any relevant prior 
art for the PTO examiner to assess. Doyle and I exchange letters, and I 
told him about this embedded capability in Viola, gave him a paper on 
viola, which contains pointers leading to more information including 
even the viola browser source code. Doyle ends up mentioning the 
browsers Cello and Mosaic, but interestingly not Viola! Now, Viola came 
before both Cello and Mosaic, and non of those two other browsers had 
any kind of embedded interactive capability at the core of the discussions.

So then PTO grants Eolas this patent. With it, Eolas sues Microsoft. 
What concerns me more is that given the scope of the patent, you can 
imagine the string of companies who might be next. More to the point, 
the effects it will have on the web software and contents, and how third 
party companies will use the browser extensibilty capabilities to enable 
an Internet scaled computing platform.

Personally, perhaps the top two issues that strikes me as odd, out of 
many in this case, are as follows.

Firstly, I was not allowed to demonstrate Viola to the jury. It was 
explained to me that the judge had decided that my demonstration, of the 
Viola browser from May 1993 showing interactive objects embedded in a 
web page, would have been too "prejudicial" against Eolas. I was also 
not allowed to tell the jury that Doyle knew about Viola. This I suppose 
is understandable but still puzzles me a little and leads to unfortunate 
effects, as I imagine the Jury ought to know these things. Lets not kid 
ourselves, everything said in court by both sides were certainly aimed 
at swaying the jury. But facts are facts, especially relevant ones.

Issue number two has to do with the Defense of the Inequitable Conduct 
(Judge's ruling on the question of "Did Doyle know about Viola browser, 
and intentionally not tell the PTO examiner about this prior art"). I 
felt that this was just surreal, as put into the context of the history 
of the web and this case. Suffice to say that it's amazing how people 
will believe whatever they want to believe, even in the face of contrary 
evidence.

Perry Pei-Yuan Wei

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