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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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Thanks, Eolas, For Making the Flaws So Patent

Published 11:06, 07 October 09

Tags: apple, applications

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\r\nThere are two huge problems with the patent system – especially the US patent system. The first is patent trolls – those who patent ideas without any intention of turning them into products, but purely with an eye to extracting money from companies that do make stuff. The second concerns companies that might well intend to create a product, but which are granted patents for ideas inappropriately – because they are not new or are blindingly obvious.\r\n

\r\nThis definitely falls into the second category:\r\n

\r\nInternet technology provider Eolas Technologies Inc. is announcing a Texas federal lawsuit filed today to assert the company's intellectual property rights based on two groundbreaking patents, including one that has passed two separate reexaminations at the United States Patent and Trademark Office (USPTO) and resulted in a \$565 million federal court judgment in 2004.\r\n

\r\nThe lawsuit, filed in the U.S. District Court for the Eastern District of Texas, includes claims related to two Eolas patents, U.S. Patent No. 5,838,906 ('906 Patent) and U.S. Patent No. 7,599,985 ('985 Patent).\r\n

\r\nThese are the companies involved - you may have heard of one or two:\r\n

\r\nThe companies named as defendants include San Jose, Calif.-based Adobe Systems Inc. (NASDAQ: ADBE) ; Seattle-based Amazon.com (NASDAQ: AMZN) ; Cupertino, Calif.-based Apple Inc. (NASDAQ: APPL) ; Newton, Mass.-based Argosy Publishing Inc.; Dallas-based Blockbuster Inc. (NYSE: BBI) ; Vernon Hills, Ill.-based CDW Corp.; New York-based Citigroup Inc. (NYSE: C) ; San Jose, Calif.-based eBay Inc. (NASDAQ: EBAY) ; Plano, Texas-based Frito-Lay Inc. [a subsidiary of Purchase, New York-based PepsiCo Inc. (NYSE: PEP) ]; Scottsdale, Ariz.-based The Go Daddy Group Inc.; Mountain View, Calif.-based Google Inc. (NASDAQ: GOOG) ; Plano, Texas-based J.C. Penney Co. Inc. (NYSE: JCP) ; New York-based JPMorgan Chase & Co. (NYSE: JPM) ; Boulder, Colo.-based New Frontier Media Inc. (NASDAQ: NOOF) ; Delray Beach, FL-based Office Depot Inc. (NYSE: ODP) ; Plano, Texas-based Perot Systems Corp. (NYSE: PER) ; Chicago, Ill.-based Playboy Enterprises International Inc. (NYSE: PLA) ; Plano, Texas-based Rent-A-Center Inc. (NASDAQ: RCII) ; Framingham, Mass.-based Staples Inc. (NASDAQ: SPLS) ; Santa Clara, Calif.-based Sun Microsystems Inc. (NASDAQ: JAVA) ; Dallas-based Texas Instruments Inc. (NYSE: TXN) ; Sunnyvale, Calif.-based Yahoo! Inc. (NASDAQ: YHOO) ; and San Bruno, Calif.-based YouTube LLC, a subsidiary of Google Inc.\r\n

\r\nStrangely, the abstracts for those two patents are completely identical:\r\n

\r\nA system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects. The user may select the program object from the screen. Once selected the program object executes on the user's (client) computer or may execute on a remote server or additional remote computers in a distributed processing arrangement. \r\n

\r\nThe user can manipulate a control panel to change the viewpoint used to view the image. The invention allows a program to execute on a remote server or other computers to calculate the viewing transformations and send frame data to the client computer thus providing the user of the client computer with interactive features and allowing the user to have access to greater computing power than may be available at the user's client computer.\r\n

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\r\nAs the last sentence makes clear, one part of this is really just an idea that has cropped up time and again in computing history: a client running code on a server. The other option – running an embedded program on the client computer – is, well, what computers are for. \r\n

\r\nIf you asked a thousand engineers how you would use a Web page to run a program in this way, I venture 999 would come up with exactly the system that Eolas is claiming. In other words, it is totally and utterly obvious to anyone skilled in the art (and even to someone like me that *isn't* skilled). \r\n

\r\nAnd as for the underlying idea of using a Web page to run embedded programs, this is just an extension of embedded data objects – precisely as the abstract itself makes clear; again, it requires zero intelligence, originality, wit or genius to come up with.\r\n

\r\nIn a way, though, I'm rather glad Eolas has decided to sue all these companies for allegedly infringing its patents. The more reasonable a patent, the easier it is to defend. In its sheer, gobsmacking unreasonableness – Eolas is essentially threatening to shut down the entire Web if people don't cough up - the present action is perhaps the worst possible advertisement for the patent system today. \r\n

\r\nAdding insult to injury, Eolas has the temerity to write in its press release:\r\n

\r\n\"Intellectual property is the lifeblood of the U.S. economy. The primary reason for this has been the success of the U.S. patent system in allowing the innovative company in a field to develop and market its new inventions without having competitors unfairly profit from the innovator's hard work,\" says Dr. Doyle. \r\n

\r\n\"We developed these technologies over 15 years ago and demonstrated them widely, years before the marketplace had heard of interactive applications embedded in Web pages tapping into powerful remote resources. Profiting from someone else's innovation without payment is fundamentally unfair. All we want is what's fair.\"\r\n

\r\nThere is no – repeat, *no* - rigorous evidence that intellectual monopolies are the \"lifeblood\" of economies, or that the patent system is needed to allow innovative companies to exploit their ideas, and plenty of evidence to the contrary. \r\n

\r\nThe irrelevance of Eolas' patents is shown by the fact that multiple, different implementations of the idea have been produced in the last decade and a half – as you would expect for such an obvious step. Trying to get paid for everyone else's work on an obvious idea is not \"fair\".\r\n

\r\nOne thing that the press release gets right is the following:\r\n

\r\n\"What distinguishes this case from most patent suits is that so many established companies named as defendants are infringing a patent that has been ruled valid by the Patent Office on three occasions,\" says Mr. McKool.\r\n

\r\nThat is, the US Patent Office is deeply implicated in this lawsuit's folly. It was incompetent in allowing such an obvious idea to be patented in the first place, and it will bear much of the blame for the fall-out of this lawsuit.\r\n

\r\nThe good news is that this is exactly the wrong time to bring such a wrong-headed legal action. The US Supreme Court is considering the Bilski case relating to patents, and will surely be made aware of the Eolas case as a classic example of why the US patent system is so broken, and why it desperately needs fixing before it breaks the Web, too.\r\n

\r\nUpdate: Writing about this subject, Mike Masnick pointed to something I'd forgotten: that back in 2003, no less a person than Sir Tim Berners-Lee \"presented the United States Patent and Trademark Office with prior art establishing that US Patent No. 5,838,906 (the '906 patent) is invalid and should therefore be re-examined in order to eliminate this unjustified impediment to the operation of the Web.\" How about taking some notice...?\r\n

\r\nFollow me @glynmoody on Twitter or identi.ca.\r\n

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