Try, Try Again: Microsoft Asks For Another Eolas Re-Exam

from the trying-anything dept

Microsoft, it seems, won’t give up in the Eolas case. If you don’t recall, this was a situation where a patent holding firm claimed they had a patent on embedding apps into browsers as plugins — something that (once again) calls into question how “obvious” some patents are. However, the USPTO claimed the patents were valid and the Supreme Court refused to hear the appeal of their case — so it looked like Microsoft might actually have to pay up more than half a billion dollars (the actual case still needs to return to the lower court where the court will also look at whether or not the patent seems valid). However, some of Microsoft’s lawyers are now requesting another re-examination of the patents, suggesting that there’s additional prior art that the patent owners did not disclose. The request for re-examination is ex parte, meaning they’re doing it as a third party, but it’s not hard to see Microsoft standing behind them requesting that this be done. In the meantime, of course, Microsoft has introduced their workaround, which makes their browser a bit less useful (how’s that for innovation?). Either way, the very length of this legal battle shows yet another problem with the patent system. Any disagreement takes years (and a ton of legal dollars) to resolve — often delaying further innovation drastically.

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Try, Try Again: Microsoft Asks For Another Eolas Re-Exam”

Subscribe: RSS Leave a comment
Sv says:

Re: No Subject Given

“Normally I’d agree with you.. but in this particular case it’s Microsoft. What innovation?!!”

I’ve never allowed myself such language on-line before, especially on a logged environment, but I speak for everybody who’s tired as HELL by all people who bash Microsoft just ’cause all do it, and therefore it’s cool, even if it frequently is out of context and makes no sense:


patentman says:


Has anyone else noticed that a lot of “problems” with the patent system pointed out on this site have to do with the patenting of computer programs? Maybe the focus here should be on the fact that the courts may have erred in allowing computer programs to be considered eligible for patent protection. Indeed, computer programs are one of the only things that I know which are subject to BOTH patent proteciton AND copyright protection.

That said, I still maintain that the current patent system functions pretty well for most other areas of technology.

Also, I fail to see how forcing someone to come up with a solution to their problem that does not infringe a patent claim deters innovation. Indeed, it fosters innovation by forcing the the devlopment of technology that is not covered by a patent claim. Yes, that technology may not be the easiest or the best way, but in many cases it is nonetheless successful. I.e. Betamax v. VHS. VHS is the lessor of the two systems, but it prevailed and became a huge economic success.

Mike (profile) says:

Re: Hello???

The story that the VHS was somehow “worse” than Betamax is actually a myth. VHS won out in the marketplace because its backers made some better choices and gave people more of what they wanted (the ability to record/view longer video content).

Still, it does a good job of highlighting the point I’ve been making over and over again. No one really knows what’s “better” until the market points out what the real needs are. So, why aren’t we letting the market decide? Instead, we’re told that someone who patents a single invention can go out and prevent others from competing at all. Instead, if new products had to actually compete in the marketplace then real innovation occurs at the consumer level, rather than back at the invention level.

Sv says:

Re: Re: Hello???

“Still, it does a good job of highlighting the point I’ve been making over and over again. No one really knows what’s “better” until the market points out what the real needs are. So, why aren’t we letting the market decide?”

BTW, you’re totally right and this is why it’ll be ridiculously funny when BluRay and HD DVD come out, so that both camps what people needed all along: the good old DVD format… and thus both will fail (except maybe as a PC data recording media).

Mousky (user link) says:

Re: Hello???

You harp on Mike for only complaining about IP law and not offering any solutions or ideas. Yet, you point out a major flaw in IP law, and all you can offer is that the “current patent system function pretty well for most other areas of technology”. End of story. Surely, as someone that is so vested in seeing a successful IP system, you could offer some solutions, ideas or thoughts on how to improve the system? What would be YOUR solution to the dual patent/copyright protection afforded to programs?

David Amherst says:


Allow me to add 2 quick points on this matter.

First of all, do not be quick to neglect that (irrelevant of obviousness issues) Microsoft could have avoided high litigation costs and time by conducting due diligence beforehand and either redesigning their software at little expense or agreeing to a fair license

Second, you often confuse “obviousness” with “invention conceivable through ordinary engineering skill.” In other words, in accordance with the current “suggestion” test of obviousness in patent law, what is obvious is what one of ordinary skill would objectively be able to discern without undue labor.

You are confusing obviousness is this sense with obvious after undue application of engineering labor. The patent system is not meant to merely protect the genius, but to protect one who exerts energy into solving a problem – exertion beyond reasonable research and development in view of what is known in the art.

I don’t necessarily disagree with raising the bar of allowability, but i think “obviousness” is thrown around a bit carelessly.

Scott says:

Re: obviousness

How is it not obvious, that a program would use another program is a modular fashion to snap into said program to add greater functionality? This is what good software is. Browser plug-ins are nothing more than mods, therefore prior art seems to prove that is obvious that other software would follow this path.

The Other Mike says:

No Subject Given

Don’t think I want to jump into the debate here but I do have a question: What if software were only covered by copyright law? Would that afford programs a measurably smaller amount of protection? Would it mean someone would have to copy a program word for word in order to be caught in breach of it or would people with original ideas stil be protected long enough to bing it to market?

Another MicroSoft basher says:

Innovation MicroSoft's style

To objectively assess this particular case one must be familiar with some history and the facts.
The Eolas patent dates back to mid 90’s when it was already widely discussed all over the Internet. I am not crazy about Eolas patent, but it happened very early in the internet age and although it doesn’t seem like a billion dollar patent to me, I should also note that it is MUCH better than 95 % of patents issued to Ms.
The recent re-exam confirmed its validity.
So , what is microsoft complaining about ?
They’ve been watering down patent quality for years on purpose – to make really breakthrough patents held by small entities less valuable.
Now they found themselves on the wrong end of the stick. Sorry MS, the patent system is the same for everybody.
I must also add that MS was caught on many occations plainly stealing ideas from small guys.
Want examples? Stack,, alacritech, amado etc. etc. etc.
Usually they are offered a cheap license early on (as in this particular case), but for some reason they ALWAYS choose to steal from small guys… Must be some corporate culture…

David Amherst says:

Re: Innovation MicroSoft's style

I have worked in in-house IP counsel for a few yrs.

I am not making any judgment on whether this technology is obvious or not. It’s not a simple matter. But I will say this – in my experience, engineers will believe that 99% of patent publications are obvious. Not because it’s true, but because the idea makes sense and is simple to them. However, put yourself in the position of the inventor. Suppose you stumble across an extremely simply, but novel concept which could dramatically impact a field. Would you want some twit in the patent office to subjectively rubberstamp your invention as obvious. Who’s job is it to determine how marketable an invention is, how much future revenue it can create or how much effort went into creating it.

Believe it or not, it is relatively difficult to overcome an obviousness rejection without creating estoppel or reducing the broadness of patent protection. I know this is not a fair rebuttal, but when someone arbritrarily claims that an invention is obvious, you have to ask, “if its so obvious, why is there published information suggesting its construction?”

again, Im not taking any sides on whether the eolas patent is in fact obvious. but, if the problem is a lack of representative publication on software in the public domain, then fix the problem where it lie.

for everyone that does (mostly because you dont understant it) think the patent office is shot and the obviousness bar is too low, i would like to challenge you to think of a better test. bare in mind that the test should be objective (a “panel of experts” would deem obvious everytime). i would honestly love to hear some new ideas.

and to avoid redundancy, it may be wise to read current practice on obviousness – see MPEP chapt. 700 and 2100 (mostly 2100) – you may gain some appreciation for the complexity of the issue

patent troll says:

Copyright does NOT protect

Here is the famous RSA algorithm in 2 lines of Perl:
print pack”C*”,split/D+/,`echo “16iII*oU@{$/=$z;[(pop,pop,unpack”H*”,
Now the different sentence implementing the same RSA algorithm:
#!/bin/perl -sp0777i$/=unpack(‘H*’,$_);$_=`echo 16dioU$k”SK$/SM$nEsN0p[lN*1
Now tell me, all of you software patents bashers, do these look the same from a copyright perspective ? Cause they surely do the same thing.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...