Jury Rules Against Microsoft in Patent Case

The New York Times ^ | August 12, 2003 | JOHN MARKOFF

[glorgau]

AN FRANCISCO, Aug. 11 — A federal jury awarded a former University of California researcher $521 million today in a lawsuit against Microsoft that asserted its Explorer Web browser infringed a patent for sending software applications over the Internet.

The lawsuit, which was filed in 1999 by Michael Doyle, now a Chicago businessman and founder of Eolas Technologies Inc., and the University of California, had sought $1.2 billion. The plaintiffs asserted that the invention had been crucial in permitting Microsoft to compete against the Netscape Navigator Web browser, now owned by AOL Time Warner Inc.

A Microsoft spokesman, Jim Desler, said that the company planned to appeal and that the court had not permitted the jury to consider information on the validity of the patent filed in 1994.

"There has been no infringement," Mr. Desler said. "These features were developed by our own engineers based on our pre-existing technology."

A lawyer for Mr. Doyle said Eolas and the University of California had not decided whether they would try to enjoin Microsoft from shipping either its Explorer browser or the Windows operating system, but that was still an option.

"We are going to defend the jury verdict," said Martin R. Lueck of Kaplan, Miller & Ciresi, a law firm based in Minneapolis, that was instrumental in the State of Minnesota's successful battle in winning damages from the tobacco industry.

He said that Eolas had chosen to sue Microsoft and not other companies with similar technology because of its significant market share.

"If you look at Microsoft right now, you're talking about someone who has 90 percent of the browser market," Mr. Lueck said. "Taking on Microsoft is a big task, that's enough of a job at one time."

The patent, No. 5,838,906, which was granted in November 1998, describes a system that allows a software browser to execute a remotely stored program.

In 1993, while Mr. Doyle was working as an adjunct professor at the University of California at San Francisco, he and several colleagues developed an interactive 3-D medical visualization demonstration.

Microsoft had tried to argue during the trial that there was significant earlier software technology that predated Mr. Doyle's invention.

Microsoft called on another researcher, Pei Wei, who in the 1990's developed a technology called Viola at the Experimental Computing Facility at the University of California at Berkeley. The company argued that the Viola work predated Mr. Doyle's invention, but the judge ruled that the jury could not consider that issue in weighing the patent violation question.

Mr. Doyle and Mr. Wei have publicly disputed whose technology came first in Internet postings dating from 1995. Mr. Wei wrote at the time that a version of the Viola program publicly released in 1991 had the ability to transfer application software over a network.

The award was based on a calculation of $1.47 for each copy of Windows sold from the time the patent was granted until September 2001.

Eolas and the university had been asking for $3.50 for each copy of Windows, an amount that Microsoft lawyers said was absurd.

[glorgau]

A little bit more of their $50 billion is going out the door because of another example of Microsoft "innovation".

[E. Pluribus Unum]

Microsoft gets hoisted on its own petard.

Kewl.

Intellectual property laws have transmogrified into something they were never intended to be, however.

[John Locke]

"There has been no infringement," Mr. Desler said. "These features were developed by our own engineers based on our pre-existing technology."

Unfortunately, Mr Microserf, independent invention is not an admissible defense against a patent violation claim. The first to patent the invention owns it. If you invent something and choose to keep it a trade secret, you do so at your own risk.

That's the main reason patent law exists - to provide the incentive to publish, because open publication of ideas and inventions is the best way to promote "the Progres of Science and useful Arts".

[Zap Brannigan]

Actually, prior invention is a defense if it was done in this country and was not abandoned, suppressed, or concealed. See 35 U.S.C. 102(g).

[DB]

I don't think that is true.

It become prior art.

[chaosagent]

I don't think this is necessarily true.

"Mr. Wei wrote at the time that a version of the Viola program publicly released in 1991 had the ability to transfer application software over a network.

I don't believe you can patent something that is already public knowledge.

And, if I remember correctly, Marconi's patents on radio were voided after the court decided that Tesla had really invented it.

So just because you got the patent first doesn't always apply either.

[cake_crumb]

I hope it sticks. If Bill Gates' drem of cornering all the software in the tech market comes true, the world will be full of idiot friend;y, constantly crashing computers which are constantly subject to attack by a few competent hackers.

Ok, so maybe I'm just a little more peeved than usual at MS because they NEVER publicize the glaring security holes in their software and hardly anyone has the patches (those bugs shouldn't BE there BILL) before a huge, network-wide exploit takes place.

I've been advising people for the past week to patch this d@mned NT/2000/XP hole. TODAY, I've been soothing frantic people who's computers suddenly started giving them NT/Action errors and rebooting! ARRGH!

[cake_crumb]

Make that NT/Authority. Suger high is wearing off. MUst be almost bedtime.

[RedBloodedAmerican]

Pei Wei and his great adventure.

[cake_crumb]

"Pei Wei and his great adventure."

LOL!

[steplock]

This does seem a bit odd because I KNOW that we installed similar software capabilities on several business sites in Houston, Tx back around 1984!

These were mostly accounting software applications so the business owners could take care of their books from their homes if needed.

In one case, we had engineers remotely accessing and operating their cad software and plotters from anywhere - even from the aircraft when they were doing their geomagnetic surveys..

And this during the days when the MAX baud rate was on a NetModemE at 9600 baud (ONLY if you had NetModems on both ends)!!

Our most innovative rig-up was using a phone connection to the sattelite uplink to keep a direct fax tie with the Mexico City Airport from the WestSide Airport at BearCreek (W.Houston) Tx. (why?__Because they just liked the fax more than the teletype.)

This is quite a few years BEFORE this case is claiming rights to.

So - we ran software from a remote server on the WAN, we had peer-peer WANs, we -of course- had file transfers obviously.

What the hell did this guy supposedly patent?

[RedBloodedAmerican]

Looks like this is going to backfire on mr Doyle, for stealing frm Mr. Wei.

Eolas, which is the Gaelic word for knowledge, is an acronym for "embedded objects linked across systems." The company was launched in 1994 to market technology that allows users to access interactive programs embedded in Web pages. Eolas chairman Michael Doyle along with two others developed the technology while at the University of California at San Francisco. Eolas owns the exclusive rights to market the technology, while the university owns the patent

Talk about a monopoly.

Double standards.

[Cicero]

Everyone loves to hate Microsoft, but I expect this decision will not stand. For one thing, the judge appears to have ruled out critical, legitimate information in his jury instructions.

[Clinging Bitterly]

>> ...a version of the Viola program publicly released in 1991 had the ability to transfer application software over a network.

I'm trying to figure out what this guy thinks he invented. People were doing that with their Apples & Commodore's & TRS-80s a good ten years before Viola, and I'm quite sure the capability existed in other types of computers back in the '60s and earlier.

There's probably more technical detail to the story that the writer either didn't understand or figured we wouldn't, as if this guy's case was that he invented file transfers in 1991, he would have surely been laughed out of court.

One thing I have always wondered about Microsoft, though. Years ago I played a little with CP/M, and when I got my first MS-DOS computer back in the mid '80s I thought I was having flashbacks. I swear CP/M is still hiding down in the depths of Win-XP code. Never understood how he got away with that.

[ThinkDifferent]

A federal jury awarded a former University of California researcher $521 million today in a lawsuit against Microsoft that asserted its Explorer Web browser infringed a patent for sending software applications over the Internet.

This sounds like yet another ridiculously overbroad patent that the USPTO rubber-stamped.

[Arthalion]

What the hell did this guy supposedly patent?

Well, I think I need to call my lawyer. The patent seems to cover the remote execution of an application capable of rendering an object or data to the clients screen over the web, when client enters the parameters for the object's or data's creation remotely.

Here's the thing: The patent was filed for in October of 1994. I released an interactive web application called wwwCAD in January 1994 (just looked it up) that basically did the same thing (user entered coord's and then submitted, which tripped a Perl script, which tripped a C app via the shell, which sent the coords over serial link to our Amiga "rendering box" running DKBTrace (the forerunner to POVRay), which rendered and returned a complete image, which the C app placed online, and which the Perl script returned to the user. For basic boxes and designs, the process only took a few seconds. For complex images, the process could take HOURS!

Sure, it was primitive and hokey, but meets every condition of this patent and it WAS prior art! I wonder what kind of evidence I'd need (the servers were taken offline in '96, and I don't even own the Amiga anymore).

[cake_crumb]

What the hell did this guy supposedly patent?

An interactive graphics program. I vaguely remember it when it came out. If you could stand to wait for the whole thing to load (back then with slower modems) it was pretty cool.

I have no idea if Wei/M$' challenge or Doyle's judgement will win in the end, but there are VERY few details in this article.

[HAL9000]

I'm trying to figure out what this guy thinks he invented.

U.S. Patent 5,838,906, Filed in October, 1994, Issued November 17, 1998 Inventors: Michael D. Doyle, David C. Martin and Cheong Ang

[cake_crumb]

"This does seem a bit odd because I KNOW that we installed similar software capabilities on several business sites in Houston, Tx back around 1984!"

I believe he patented what became the standard application development interface (API) so that internet based companies could take advantage of interactive programs via the web. It was called Mosaic, I think.

[John Locke]

Thanks for the comment. It seems to me probable that the patent can be overturned on the "prior art" basis, since there have indeed been many published and public domain systems that used remote execution. The first I can remember was Tripos, written at the University of Cambridge in the 1970s.

But that does not seem to be Microsoft's position. Their spokesman seemed to be claiming that Microsoft had invented the technology independently in house, and so was entitled to use it. That's not true: if they "concealed" the technology - ie kept it a trade secret - they automaticaly lose any claim to priority.