Patent could force web change

By Bill Thompson

Web developers are anxiously waiting for a Microsoft announcement about changes to its Internet Explorer browser after a US court found that it infringes another company's software patent.

Browser patent written in a complex legalistic style

Last month the Chicago District Court awarded $521 million in damages to Eolas, the small company which holds the patent, ordering Microsoft to remove all infringing technology from its browser and other programs.

It also rejected Microsoft's claim that the patent was invalid because the invention was already included in an earlier browser.

In a statement, Microsoft said: "We do plan to appeal this decision, and we are confident the facts and the law will support our position. We believe the evidence will ultimately show that there was no infringement of any kind."

Even though the legal process has not yet been exhausted, Microsoft spokesman Jim Desler has admitted that "we are evaluating our options and may take precautionary steps in terms of any changes we may need to make to Internet Explorer".

Complex patent

The World Wide Web Consortium, the body responsible for web standards, also released a statement saying that Microsoft "will very soon be making changes to its Internet Explorer browser software in response to this ruling."

Ruling a clicking on a link to load a video player

The patent concerned describes a way of "automatically invoking [an] external application" and "providing interaction and display of embedded objects" inside a "hypermedia document".

Like all software patents, it is written in a complex legalistic style which makes it hard to determine just what it covers.

However there is a general consensus within the web community that it would include clicking on a link to load a Flash movie or a video player, controlling an external application through a web interface and downloading and running programs inside a web page.

This means that core web technologies, including plugins for multimedia websites, Java applets, and even Microsoft's own ActiveX controls, will be affected.

If, as seems likely, Eolas decides to pursue other alleged infringers then web development tools and other browsers, including Netscape and Opera, will have to be modified and many existing websites will have to be rewritten.

Even though this is solely a US patent, it will affect web users and developers around the world, simply because the way browsers and web development tools work will be affected as US companies move to comply with the judgement.

In August the World Wide Web Consortium held an emergency meeting to discuss the impact of the case. Already many mailing lists, websites and technically-focused weblogs contain comments, background and occasional wild speculations about how the web will need to change.

Long haul

Many are critical of Eolas for pursuing the case, others argue that the US patent system is flawed for allowing such broad patents to be granted, and some are concerned with the search for 'prior art', or evidence that the patented invention existed before the patent was applied for.

As with many patent disputes, this one has been going on for some time. In 1994 the University of California applied for a patent based on work done by one of their researchers, Michael Doyle.

US Patent number 5,838,906 was finally granted in November 1998, having already been licensed to Doyle's company, Eolas.

In February 1999 Eolas sued Microsoft, with the university's support, arguing that the way Internet Explorer linked to non-web data infringed the patent.

The Chicago District Court in Chicago first ruled in favour of Eolas in January 2001, before damages were awarded and Microsoft was ordered to remove the technology from its products.

However if Microsoft goes ahead with its appeal, it could be 18 months before the Federal Circuit Court of Appeals makes its final decision and the situation is resolved.

Eolas has made no comment since the court case.

Bill Thompson is a technology analyst who is a regular commentator on the BBC World Service programme Go Digital.