Eolas Is Baaaaaaaaack; And It's Suing Everyone Over Embeddable Web Widgets

from the because-otherwise... dept

Well, here we go again. As you may recall, Eolas is a company that claimed to hold a patent (5,838,906) on browser plugins. The company sued Microsoft, and a long drawn-out battle ensued. Even though web inventor Tim Berners-Lee presented prior art and asked the USPTO to invalidate Eolas' ridiculously broad and obvious patent, the USPTO eventually upheld the patent (after initially rejecting claims). Even as Microsoft began presenting evidence that it actually had made use of the technology in question before Eolas applied for its patent, losses in the courts and the Supreme Court's refusal to hear the case eventually resulted in Microsoft agreeing to settle rather than continue to fight.

Since then (two years ago), plenty of people have been waiting for the other shoe to drop, concerning Eolas' plans to sue others. Now we know why it waited. It's now received a new patent -- a continuation patent, which is often used to abuse the patent system by putting forth a broad patent, then filing for continuations to make changes that let an earlier "invention" cover technologies that later become popular. In this case, the new patent (7,599,985), which basically just extends the earlier patent on browser plugins, and extends it to javascript widgets. Yes, those embeddable widgets used all over the web? It appears that Eolas thinks that those are infringing and everyone should pay up.

The new lawsuit has been filed against Adobe, Amazon, Apple, Blockbuster, Citigroup, eBay, Frito-Lay, Go Daddy, Google, J.C. Penney, JPMorgan Chase, Office Depot, Perot Systems, Playboy Enterprises, Staples, Sun, Texas Instruments, Yahoo, and YouTube. Apparently, starting small isn't part of the plan. Not surprisingly, Eolas filed in Eastern Texas using McKool Smith -- one of the most popular law firms representing patent holding firms in East Texas.

I am honestly curious how patent system defenders, who are also programmers, can defend this. I'm sure non-programmers will claim that the patent is valid, but I can't imagine how anyone who has any knowledge of basic programming principles can claim that such a patent is valid. In the meantime, tons of companies doing an incredibly basic thing on the web will now have to waste millions of dollars fighting a ridiculous patent lawsuit. How is this promoting innovation in any way shape or form?


Reader Comments (rss)

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    :Lobo Santo (profile), Oct 7th, 2009 @ 9:53am

    Were I a tad less scrupulous...

    I'd patent the wheel--using broad technical termS which any patent clerk couldn't possibly be bothered to actually look up--plus as much mathematical jargon as I could put in there.

    I'd make sure it also covers "wheel shaped objects" such as tires and gears, pulleys and bearings... plus representations of wheels (Trademark, ya know).

    And then, sue almost everybody for selling round things; or even for selling representations of round things! (power button, anyone?)

    I'll be rich, Rich!! MWA-HA-HA-HA-HA!!!

     

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    identicon
    Anonymous Coward, Oct 7th, 2009 @ 10:05am

    "I am honestly curious how patent system defenders, who are also programmers..."
    This group of people are stupid idiots ?

     

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    Dark Helmet (profile), Oct 7th, 2009 @ 10:09am

    Two reasons why this lawsuit will fail:

    1. CitiGroup
    and
    2. JP Morgan

    Mark my words, if they continue to be parties on the suit, it will be slapped down, no matter WHAT court hears the case.

     

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    identicon
    David, Oct 7th, 2009 @ 10:11am

    Don't back down now

    This is one instance where companies should not back down, this whole thing is getting out of hand.

     

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    identicon
    John Doe, Oct 7th, 2009 @ 10:18am

    Since browser plug-ins are BROWSER plug-ins, shouldn't the creators of the browsers who allow for the plug-ins in the first place hold any patent on the technology? How can you patent making use of a technology that someone else created?

     

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      :Lobo Santo (profile), Oct 7th, 2009 @ 10:22am

      Re:

      Hey, ludicrousness is no challenge for our legal system!

      Swallowing horses and passing camels thru needles' eyes are requisite beginner courses for all lawyers.

      (Followed by one-hand-clapping; theological proofs; and "How to Prove Logical Inconsistencies")

       

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      identicon
      Trails, Oct 7th, 2009 @ 10:54am

      YOU FOOL!!!

      You search for logic and rationality in the justification of these actions and a system that suborns this?? Ahahaha, you poor deluded, quixotic man or woman(or transgender or whatever).

      This is the innovation the patent system is designed to encourage; innovating in how to exploit the patent system.

       

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    Chuck Norris' Enemy (deceased) (profile), Oct 7th, 2009 @ 10:40am

    angry dude?

    I want to know what angry dude thinks of this. Meh! All we'll get is Mikey is an idiot and we're all punky lemmings.

     

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      Dark Helmet (profile), Oct 7th, 2009 @ 10:47am

      Re: angry dude?

      He'll be here later. We went shot for shot with some Jameson Gold Irish Whiskey to settle a bet on who could drink more: the Irish, or the Ruskies.

      ....needless to say the proud land of Eire can be a tad prouder today!

      Sláinte Mhath

       

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    lavi d (profile), Oct 7th, 2009 @ 10:44am

    My Next Patent

    A browser plug-in that sues.

     

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    Chris (profile), Oct 7th, 2009 @ 10:51am

    Metallica said it best -

    Kill 'em All

    I jest, but I can certainly tell you that I'll not stop using "plugins" in my day-to-day programming activities.

    The USPTO is completely inept, and seemingly corrupt as well. There are, quite literally, stacks of prior art pertaining to both this and Eolas' previously contested patent (re: MS.)

     

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    captn trips, Oct 7th, 2009 @ 11:32am

    THIS IS OLD MAN!!! Arstechnica.com posted it two days ago :) I thought you just passed on this one.

     

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    identicon
    TDR, Oct 7th, 2009 @ 11:33am

    "Ludicrous speed, GO!!!"

    I swear, patent trolls are about as clueless as President Spaceball.

     

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    TheStupidOne, Oct 7th, 2009 @ 12:09pm

    Common Defense

    I counted 23 companies being sued. If those 23 companies pool their resources and have a common patent defense team then the individual cost goes way down. Meanwhile the defense team just needs to delay the trial for as long as possible while doing everything in their power to have the patent invalidated

     

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      Ronald J Riley (profile), Oct 9th, 2009 @ 2:20pm

      Re: Common Defense

      According to TheStupidone, "I counted 23 companies being sued. If those 23 companies pool their resources and have a common patent defense team then the individual cost goes way down. Meanwhile the defense team just needs to delay the trial for as long as possible while doing everything in their power to have the patent invalidated"

      What you are suggesting could open companies collaborating in this manner to civil & maybe even criminal RICO claims. This could be the key to finally put blood sucking thieving transnational companies in their rightful place.

      One more point, the reason that inventors are moving their companies to Texas is that the court does not tolerate delaying tactics. Piracy Coalition members hate the court for this.

      I expect that eastern Texas will see a huge influx of inventor-entrepreneurs as a result of attempts to stop inventors from accessing that court. Tyler Texas may become the next Silicon Valley while Silicon Valley may well wither because the Piracy Coalition pretty much owns the courts there.

      This sounds like poetic justice to me.

      Ronald J. Riley,


      I am speaking only on my own behalf.
      Affiliations:
      President - www.PIAUSA.org - RJR at PIAUSA.org
      Executive Director - www.InventorEd.org - RJR at InvEd.org
      Senior Fellow - www.PatentPolicy.org
      President - Alliance for American Innovation
      Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
      Washington, DC
      Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Oct 7th, 2009 @ 12:50pm

    There is also a patent pending for anything that creates ramdisks. So now, at least in windows, I haven't seen any open source software as of late that creates them. Ramdisk software has been around a long time, the idea is certianly not new, but it seems for this new application it's not being hindered.

    http://www.superspeed.com/desktop/ramdisk.php

     

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      identicon
      Anonymous Coward, Oct 7th, 2009 @ 12:51pm

      Re:

      sp/but it seems for this new application it's not being hindered./but it seems for this new application it's being hindered.

       

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    •  
      identicon
      Anonymous Coward, Oct 7th, 2009 @ 12:55pm

      Re:

      Heck, even DOS has a way of creating ramdrive that's been around for a long time, but it's limited to 32 MB. The idea of extending it to a new operating system and expanding the memory (even to include memory that WinXP 32 bit can't allocate, extended memory functions have been around for a long time, that idea is not new either) deserves no patent.

       

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    •  
      identicon
      Rabbit80, Oct 7th, 2009 @ 2:55pm

      Re:

      The Commodore Amiga was doing this out of the box - as far back as 1985!

       

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    Daemon_ZOGG (profile), Oct 7th, 2009 @ 12:56pm

    Blood-Sucking patent TROLL...

    Screw eolas. To hell with their lawsuit. Do it anayway. I encourage it. Along with many other broad-based patents. Eolas waited until the majority of web-based companies began their own innovations on this prior art concept before filing suit in bulk. Definition? PATENT TROLL & ABUSE OF "SO CALLED" LEGAL RIGHT. Eolas has no place in software. I defy their claims on any broad-based patents. I hearby sentence them to /dev/null.

    mv -f /eolas /dev/null "BEGONE SATAN!"

     

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    identicon
    Anonymous Coward, Oct 7th, 2009 @ 1:10pm

    Another thing that sucks is that, for linux, video acceleration functions often don't work for video cards because the drivers are proprietary and the manufacturers refuse to release the information required for anyone to create their own drivers and use those functions (though AMD at one time said they would release driver info for some of their older cards http://lwn.net/Articles/248227/ ). So much for intellectual property creating openness and encouraging people to release information. Heck, Windows 95 is still under intellectual property and it's closed source.

     

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    identicon
    SC, Oct 7th, 2009 @ 1:17pm

    and software patents are a good thing?!?

    Thankfully I live in Europe where software patents are [null|void|defunct|a load of shoite]*

    * delete as appropriate

     

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  •  
    identicon
    NullOp, Oct 7th, 2009 @ 1:39pm

    The Web

    The World Wide Web:
    Where greed rules and lawyers drool and all the companies are run by fools....well, almost anyway.

     

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    ArtificialReef, Oct 7th, 2009 @ 2:33pm

    Its about not having to innovate

    It is not about furthering innovation. Patent suers don't care about innovation they care about getting money without having to do any work. And it is working out for them too to the detriment of all those who don't mind doing work or providing a service for a reasonable fee.

     

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    Simple Mind, Oct 7th, 2009 @ 2:41pm

    programmers on software patents

    I have worked in a couple of the largest software companies and in startups. I have never met a programmer that thinks patents on software are a good idea. Unanimously we wish it would just go away. However the companies will give you a bonus (about $5k in my experience) for each filing of a patent on your work for them. Many take advantage of that.

     

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      Dark Helmet (profile), Oct 7th, 2009 @ 2:49pm

      Re: programmers on software patents

      "However the companies will give you a bonus (about $5k in my experience) for each filing of a patent on your work for them. Many take advantage of that."

      I'm extremely impressed. You just found the ONE single way that patents can be used to encourage innovation, though I'm fairly certain that's not how the founding fathers intended it to be done.

      Mike, assuming this is true, such patent bonuses are something we ought to take into consideration when asking the question how do patents encourage innovation, no?

       

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        Rabbit80, Oct 7th, 2009 @ 3:03pm

        Re: Re: programmers on software patents

        The problem is that this does stifle innovation. As a result of the patents that are filed, further development by other creative minds in other companies - that could make massive improvements in the way a technology is used or could apply the technology to other areas - are crippled.

         

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        Richard Corsale (profile), Oct 7th, 2009 @ 3:11pm

        Re: Re: programmers on software patents

        The reason patents have a 20 year life cycle is because that's how long it took to produce enough of a given product at the turn of the century to establish a market presence. Today top tech companies are like ten years old. The constitutional passage was written in a time before the industrial revolution let alone the digital one.

         

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    identicon
    poop, Oct 7th, 2009 @ 3:21pm

    poop

    poop

     

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    cc, Oct 7th, 2009 @ 4:09pm

    Surely it must be possible to patent Patent Trolling and sue Eolas.

    If they approved a patent for embedded widgets, there's no doubt they would also approve a patent on Trolling.

     

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    Zaphod (profile), Oct 7th, 2009 @ 4:24pm

    Eolas

    Will someone please take Eolas out of our collective misery?

    Perhaps the creators of the webserver they are hosting their site on should revoke their rights to use.

    Interestingly enough... Eolas rescrambled is E-salo, as in Electronic Salo o' le 120 Giornate di Sodoma. Yep, happy faced fascist tyrants they are, and just about as harmful to the mind, in my opinion.

     

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    identicon
    ..., Oct 7th, 2009 @ 6:20pm

    Microsoft Patents Ones, Zeroes

    http://www.theonion.com/content/node/29130

    Sometimes it seems the Onion can predict the future.

     

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    identicon
    Anonymous Coward, Oct 7th, 2009 @ 8:40pm

    Before launching off on a "how can this be" crusade it is important to understand the following taken from the face of the patent:

    This application is a continuation and claims the benefit of U.S. application Ser. No. 09/075,359, filed May 8, 1998 now abandoned, which is a continuation of U.S. application Ser. No. 08/324,443, filed Oct. 17, 1994 now U.S. Pat. No. 5,838,906, the disclosures of which are hereby incorporated by reference.

    Given that this patent is based upon an application originally fied on 10/17/1994, and given that the specification remains the same from one continuation to another (as distinguished from a continuation-in-part application), the subject matter being claimed is measured against prior art from the 1993/1994 timeframe.

    Moreover, as has been stated repeatedly by others who have submitted posts to your site, whatever is patented is defined by the claims contained in the patent. Invariably they are narrower in scope than the specification filed in 1994, sometimes much narrower depending upon the prior art that is cited and applied against the claims during examination of the patent application by the USPTO.

    Over and above that, patents such as this are not for "software" in the conventional sense that the word is used. They are typically for devices and methods implementing what is described in the specification of the application. The fact that someone can write code is interesting, but is not relevant to the question of whether or not the invention as claimed is novel and non-obvious as measured back in the 1993/1994 timeframe.

    It is easy to say "This is obvious!" It is quite another matter for one who exclaims this to back up their claim with relevant proof.

    You rightly demand those who may disagree with your views to cite "evidence". This applies with equal force when you and others disagree with the claims of a patent. If you have proof then cite it in support of your claim. Otherwise, you fall prey to the very thing you demand of others.

     

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      identicon
      Casey, Oct 7th, 2009 @ 9:19pm

      I'm impressed

      That was a reasoned, thoughtful, and concise explanation and rebuttal.

       

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      identicon
      ..., Oct 8th, 2009 @ 6:12am

      Re: Weak Argument

      Your argument rests solely upon the fact that this is a continuation patent. Continuation patents are used to game the system, they allow post dating of claims. Continuation patents should not be allowed, for many reasons that have been covered in prior discussions. But I'm sure you are well aware of the issues and chose to ignore them.

       

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        Anonymous Coward, Oct 8th, 2009 @ 7:11am

        Re: Re: Weak Argument

        A raft of conclusions and opinions citing not a whit of proof. Perhaps you might want to try this again by first marshalling relevant facts.

        Continuations exist for any number of perfectly valid and non-nefarious reasons such as "restriction practice", the initial claiming of two separate and distinct invention in the original application. Still others transpire due to the application examination process itself where changes are made to an initial set of claims based upon prior art cited by an examiner. Of course, numerous other examples abound.

        Opinions are only as good as the facts upon which they are based. I have searched this comment in vain for any such facts.

         

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        •  
          identicon
          ..., Oct 8th, 2009 @ 7:20pm

          Re: Re: Re: Weak Argument

          Are you saying that continuation patents are not and have never been used to back date patent claims?

           

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    KGWagner (profile), Oct 8th, 2009 @ 6:42am

    Patent Defending Programmers

    Mike said: "I am honestly curious how patent system defenders, who are also programmers, can defend this."

    I certainly can't speak for all programmers, but I'm quite sure that the subset of programmers who also support software patents is quite small. You simply can't be as shortsighted and oblivious to reality as you'd have to be in order to support software patents and still be a programmer at the same time.

    The only way I could see that being true would be perhaps in the case of a novice programmer who "discovers" the binary sort or the linked list, and is naive enough to think nobody's ever thought of it before or that it wouldn't be obvious to the first person who developed a need for the algorithm. A child like that might believe he could run to the patent office and lock that little bit of prescience down in order to get rich, never realizing that it's the equivalent of giving someone directions to get from Michigan to Ohio. There are a million ways to do it; simply documenting the idea that you can do it is foolish in the extreme, and undeserving of patent protection.

     

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    identicon
    Anonymous Coward, Oct 8th, 2009 @ 7:47am

    While there are likely "programmers" who have the insight and knowledge to also be classified as an inventor, my experience within the aerospace industry suggests that this is rarely the case. Merely by way of example, I have to wonder how many programmers have the knowledge to formulate a solution involving difficult image and signal processing issues using wavlet theory, and then taking the wavelet-based solution and committing it to code? If you watch television shows such as CSI you are undoubtedly aware of a system known as AFIS. I can assure you that the scientists at Martin Marietta who developed the algorithms necessary to implement a solution were most certainly not the ones who prepared the code.

    BTW, an application that is little more than documenting an "idea" will promptly be rejected under the "enablement" requirement specified at 35 USC 112.

     

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    identicon
    staff1, Oct 9th, 2009 @ 7:21am

    stop the shilling!!!

    "Even though web inventor Tim Berners-Lee presented prior art and asked the USPTO to invalidate Eolas' ridiculously broad and obvious patent..."

    That's because they were found to not disclose the claimed invention. How the hell would you know what is "obvious"? Have you ever prosecuted a patent application? Are you a patent attorney? No. All you do is write a bunch of payola articles for Microsoft and their thieving pals.

     

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    Ronald J Riley (profile), Oct 9th, 2009 @ 1:54pm

    Eolas is perfect example of an inventor with a solid patent.

    I started programming while I was still in junior high school in Algol. I can safely say that as computers have become more powerful and smaller it has become possible to implement more and more inventions in software which would have required hardware in the past.

    I have done both hardware and software engineering. I have used more computer languages and dialects than I can count. I have programmed using manual compilation, assemblers, and high level languages.

    Egos being what they are few programmers are willing to admit that they are on the wrong side of the Bell Curve in terms of their capabilities. Yet we all know that there are tremendous differences in programming capabilities. It is a fact that most programmers are drones doing repetitive and unchallenging work. They are not creative.

    At the top of the heap you have honest to goodness inventors, the cream of the crop.

    The inventor behind Eolas is Mike Doyle, a professor who invented while at the University of California. The invention and prior art have been reviewed with a fine tooth comb, and was tied up in reexamination for years. As a rule, no one licenses a patent while it is being reexamined but those who are infringing usually know they are and they do have the opportunity to actively seek out the inventor and settle up.

    The Eolas patent is solid.

    Eolas is suing and suing lots of companies because lots of companies are stealing and stealing on the grandest of scales. I expect that the theft amounts to billions of dollars.

    Patent litigation is a direct result of disputable conduct by thieving large corporations. There would not be a market for patent enforcement companies if not for the fact that these companies intentionally infringe.

    Eolas is not the bad party here. It is a company which produced inventions, taught those inventions to everyone via patents, took on the missionary job of marketing the invention.

    This is what happens to many inventors. They show their invention to a number of companies who say they are not interested and then they use the invention without acquiring the rights to do so.

    They count on the inventor not being able to afford justice, and that often works.

    When the inventor does manage to get help enforcing their patent property rights the big company screams about trolls and there seems to be no shortage of people who buy their propaganda hook line and sinker. Of course, they are usually egged on by corporate shills, PR people operating as bloggers or posing as journalists.

    Ronald J. Riley,


    I am speaking only on my own behalf.
    Affiliations:
    President - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.

     

    reply to this | link to this | view in chronology ]


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