Microsoft is moving beyond trade-secrets protection for its software code and now is rivaling companies such as IBM in seeking patents (not surprising, given the volume of code it produces). The W3C appears allergic to patents, at least to any requiring royalties. Yet both Microsoft and W3C agree on one thing -- browser patent claims by Eolas are invalid.

The U.S. Appeals Court also appears to agree. The court today overturned a ruling against Microsoft on Eolas' claims and sent the case back to a lower court for a new trial. The issue is significant because the technology at issue is so ubiquitous, not just in Microsoft's Internet Explorer but in Netscape and other browsers. The technology is a key component of browser interactivity, allowing web page developers to embed interactive programs. Thus, this ruling benefits all users of the Internet.

In the original trial, the trial judge prevented Microsoft from presenting evidence of prior art. Microsoft maintains the technology was first developed by Mr. Pei-yuan Wei and his colleagues at O'Reilly and Associates, before the University of California created Eolas to patent the technology. Now a jury will be able to see that evidence and decide for themselves.

Some have criticized Microsoft for its use of patents, criticism I find absurd when as my colleagues Solveig and Jim have pointed out, the growth of the open source movement is making it more difficult to rely on trade-secret protection. But this is a case of a small company holding the entire Internet at gunpoint, so much so that the W3C has requested a reexamination of the patent with the U.S. Patent and Trademark Office. It reminds me once again that the problem is not with software patents, but the process in which one obtains patents, including insufficient examination of prior art.

posted by Patrick Ross @ 2:36 PM | Patents

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