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David and Goliath Versus Another David

A patent dispute triggers an unusual alliance between an open standards group and Microsoft

3 min read

”Does Macy's tell Gimbels?” was once a popular saying in New York, back in the days when the world's largest department store was so close by it could have whispered to its small rival across Herald Square.

Nobody today will rhetorically ask, ”Does Microsoft tell the W3C?” That's because software giant Microsoft Corp. (Redmond, Wash.), whose empire is built firmly upon a foundation of proprietary software, has found itself a surprising ally in the World Wide Web Consortium (W3C), an important but obscure organization devoted to open standards.

In a letter dated 24 October, Tim Berners-Lee, who, 12 years ago, invented the Web, and who currently heads the W3C, asked the head of the U.S. Patent and Trademark Office to re-examine a patent granted five years ago, to 1203webs01.jpg”prevent substantial economic and technical damage to the operation of [the] World Wide Web.”

The damage would result from changes Microsoft intends to make in its Internet Explorer (IE) program, to avoid infringing the patent. The fact that IE, which overwhelmingly dominates the Internet browser market, was at the center of the U.S. government's antitrust case against Microsoft makes it all the more surprising that Gimbels would speak up for Macy's.

But patent 5838906, filed by tiny Eolas Technologies Inc. (Chicago) in 1994 and awarded in 1998, is so breathtaking in its scope that it apparently deserves this ”the enemy of my enemy is my friend” treatment. So back in August, Microsoft went to the W3C asking for its support, according to Danny Weitzner, who directs the consortium's technology and society activities.

The patent's claims--upheld in federal district court this past summer--cover almost every instance of one program's activity being embedded in another, an increasingly common behavior in today's networked computing environment.

In fact, the average user of Internet Explorer, or any other Web browser, such as Netscape or Apple's Safari, probably sees this several times a day. For example, when a link to a PDF document is clicked on, the browser triggers Adobe's Acrobat program. The same sort of thing happens with audio and video clips, such as those that use Real Networks' RealOne, Apple's QuickTime, or Microsoft's Windows Media Player software. The Eolas patent purports to cover essentially all such ”plug-ins,” and just about all Web programs written in the Java language, and in scripting languages such as Flash.

The patent is based on work done by Michael Doyle and two other researchers at the University of California. Doyle founded Eolas shortly after he left the university in 1994. In 1995 the school assigned Eolas the exclusive right to market the invention.

Eolas sued Microsoft for infringement in 1999, a year after the patent was finally issued. The suit took another four years to come to a jury trial, which Microsoft lost this past July, to the tune of a US $521 million verdict. (The jury multiplied $1.47 times 354 million copies of Microsoft's Windows operating system.)

Post-trial motions are expected to culminate in a 4 December hearing in Illinois's northern district. The judge there is to rule whether Microsoft must pay up immediately, and how much. With interest and the latest sales of Windows taken into account, the final award might be as high as $1.2 billion. Microsoft is certain to appeal.

In his letter to the patent office, Berners-Lee notes that rather than license the Eolas patent, Microsoft plans to redesign IE. Doing so, he says, ”would render millions of Web pages and many products of independent software developers incompatible with Microsoft's product.”

Eolas, meanwhile, has offered Microsoft a license for $632 million--the $521 million jury award, plus interest of about $111 million. Thus, at about half the amount that the 4 December judgment is likely to be, and without having to change the browser--or inconvenience the Web as a whole--Microsoft could be rid of the matter. Nevertheless, Microsoft declined the offer, saying that its planned changes to IE are modest and ”will not have significant impact on consumers or the Web community as a whole.” But they were significant enough that Macy's went to Gimbels.

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