In the quiet Texas town of Tyler, a monumental battle over the future of the web has just taken place. Father of the World Wide Web, Tim Berners-Lee, lined up with other pioneers to defend the web from a patent suit by Eolas Technologies and the University of California. The patent claimed that Michael Doyle and two co-inventors were responsible for first creating the ‘interactive’ elements of the web, such as rotating pictures or streaming video, in 1993.
If the jury had found in favour of Eolas, companies including Google, YouTube, Yahoo, Amazon and Adobe would have been sued for patent infringement with damages likely to be in excess of $600 million. The three pending trials that were to have ruled on infringement and damages have now been cancelled.
After describing how Berners-Lee worked at CERN in Switzerland back in the 1980s, [lawyer Jennifer] Doan moved on to the web. When Berners-Lee invented the web, did he apply for a patent on it, Doan asked.
“No,” said Berners-Lee.
“Why not?” asked Doan.
“The internet was already around. I was taking hypertext, and it was around a long time too. I was taking stuff we knew how to do…. All I was doing was putting together bits that had been around for years in a particular combination to meet the needs that I have.”
Doan: “And who owns the web?”
Berners-Lee: “We do.”
Doan: “The web we all own, is it ‘interactive’?”
“It is pretty interactive, yeah,” said Berners-Lee, smiling.
The jury heard how Pei-Yuan Wei’s Viola browser predated Doyle’s invention, and that Wei had demoed interactive elements several months before Doyle said he invented interaction.
It was this clear demonstration of prior art that persuaded the jury to strike down the two software patents — 5,838,906 and 7,599,985 — that Eolas was relying on. Although Eolas can appeal, they won’t be able to start any new suits before an appeal is heard.
Eolas Technology has form when it comes to patent litigation. It sued Microsoft for in 1999, claiming that “Internet Explorer used plug-ins and applets that infringed a patent it held”. Eolas won that case in 2003 and was awarded $521 million in damages. Although Microsoft won the appeal, overturning the verdict, they decided in 2007 to settle out of court with Eolas in an agreement that is estimated to have cost the company over $100 mn.
Despite campaigns from W3C, the web standards group, and initial signs that the US Patent Office might invalidate Eolas’ patent, ultimately they did not.
In 2009, Eolas was granted second patent which extended the earlier one. On the same day, Eolas filed a suit against over 20 companies for using the “interactive web” for infringing both patents. Said Eolas at the time:
Preliminary and permanent injunctions prohibiting the plaintiffs from using the patented technology; payment for damages from infringement, including treble damages because the alleged infringement was willful; attorney’s fees; and a jury trial.
Many of those companies, including Apple, Blockbuster, JP Morgan Chase, and Sun Microsystems, decided to settle rather than take the suit to court.
Software patents a “terrible tax on invention”
The current patent system is a terrible tax on invention, as it requires real inventors to spend time in court rather than focusing on making real things happen. We must remember that the patent system was supposed to “promote the progress of science and the useful arts,” not to enrich people who know how to work the legal system.
Although Eolas Technologies will have to spend some time regrouping after this loss, there’s no doubt that America’s patent system remains deeply flawed and open to abuse by companies like Eolas. But as more business giants pay the cost of a sloppy patent system, we can only hope that their lobbyists will push harder for significant reform of the patent system.