Patently absurd How one man and an outdated legal system are holding the Internet hostage BY JESS KILBY

A federal judge in Chicago issued a ruling this week that just might break the World Wide Web. The ruling is the latest installment in a saga that has lasted half a decade, a battle of David-and-Goliath proportions in which, for once, the giant plays the good guy. Kind of.

Unless you’re a Web developer or a regular reader of niche tech publications, you’ve probably never heard of Eolas Technologies or its multi million-dollar lawsuit against Microsoft Corporation. So here’s your crib sheet: Eolas is a one-man company out of Chicago that’s owned and operated by former University of California researcher Michael Doyle. In 1998, UC was granted a patent for embedding interactive elements within a Web browser (plug-ins like Flash movies and streaming audio); the patent was based on work that Doyle had done during his time at UC. When Doyle went on to found Eolas, his alma mater granted him exclusive rights to use and license the patent.

In 1999, Eolas filed a patent-infringement lawsuit against Microsoft for using the embedding technology in its Internet Explorer browser without obtaining a license from Eolas. This past August, when the case finally went to trial, the Chicago jury that heard the case sided with Eolas and ordered Microsoft to pay $520.6 million in damages. (UC will get 25 percent; Doyle takes the rest.) On January 14, Judge James Zagel upheld the jury’s ruling.

But Zagel issued another judicial edict that day in the Eolas case, one that gets to the heart of why this fight has generated Microsoft allies in some of the most unlikely places. Although Zagel has prohibited Microsoft from distributing copies of Internet Explorer that contain the contested technology, the judge has suspended his own injunction until the appeals process has run its course — which could go all the way to the US Supreme Court.

This stay is perhaps unexceptional in the legal sense, but it’s at the crux of the matter from a technological stance. If Microsoft were to remove the code in question, many existing Web pages would cease to work. Specifically, Web pages that deliver dynamic content of nearly any type, including real-time stock quotes, movie trailers, and security updates.

This ruling has left Microsoft with three options: pony up the cash for a license from Eolas (which would make MS the company’s first-ever customer); figure out how to deliver embedded content without using the technology to which Eolas has laid claim; or keep arguing in court that Eolas is full of shit.

Redmond (that is, Redmond, Washington, where the Microsoft campus is located) has opted to pursue options Two and Three. The Web dev community, both in concert with Microsoft and on its own, is pursuing similar tactics. And nobody is very happy with Michael Doyle.

The biggest problem with Option Two, you see, is that it’s not just Internet Explorer that’s using this taboo technology. It’s in pretty much every browser out there, including Safari, Opera, and Mozilla. Which means, if Eolas ultimately reigns in this case, it will be every platform for itself. Browser developers in each camp will come up with their own unique hacks and workarounds, and the cross-browser compatibility that standards-enforcing bodies like the World Wide Web Consortium (WC3) have worked so long and so hard to achieve will be shot to hell. Web developers will have to frame any embedded content on their sites in multiple sets of code to handle the demands of various browsers, and those code sets may very likely conflict with each other and cause the embedded portion of a site — if not the whole site — to fail.

Regarding Option Three, the development community is taking a two-pronged approach. While Microsoft readies to file an appeal of this week’s ruling, the WC3 and industry activists have raised enough of a din to convince the US Patent and Trademark Office to re-examine UC’s patent — a rare but not unprecedented move for the PTO.

The case now rests on whether Doyle’s foes can provide enough "prior art" to prove that Doyle was not the original creator of the technology. And while that evidence was suppressed at the jury trail in August, it has not gone away. Perry Pei-Yuan Wei, who worked on a browser called Viola in the early 1990s, writes on his UC Berkeley Web site (http://www.xcf.berkeley.edu/~wei/viola/aboutEolasMicrosoft.html) about the similarities between his work and Doyle’s — and the fact that Doyle knew about Viola but kept mum on the subject when applying for his patent.

"By December 1992, I had embedded objects working in the Viola browser," Wei writes. "I started releasing this code around fall of 1993 and early 1994. Eolas filed the patent in November 1994.

"I’m not a lawyer, but, as I understand it, one is supposed to disclose to the PTO any relevant prior art for the PTO examiner to assess. Doyle and I exchanged letters, and I told him about this embedded capability in Viola, gave him a paper on Viola, which contains pointers leading to more information including even the Viola browser source code. Doyle ends up mentioning the browsers Cello and Mosaic [in his patent application], but interestingly not Viola!"

Let’s hope the PTO and/or a higher court is more receptive to testimony concerning valid prior art on this technology. Because, as Wei writes, "this is an incredibly unproductive exercise, and may fragment and degrade the interoperability of the Web.

"Of course, I suppose the positive but naive view is that in the effort to avoid this patent, people will innovate more to come up with workarounds."

But wouldn’t it be better if people could spend their time on innovations that addressed real problems?

Jess Kilby can be reached at jesskilby@yahoo.com