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Microsoft Fights For Browser Plug-Ins

Microsoft fired another shot in its defense of the patent infringement suit brought by Eolas Technologies, asking the U.S. District Court to overturn a Federal Court ruling.

Microsoft has lost twice in the suit, once in a jury trial and once on appeal. Now, it's asked the U.S. District court to overturn the $521 million judgment and injunction against distribution of its Internet Explorer browser.

Eolas, a spin-off from the University of California, sued Microsoft in February, 1999 for patent infringement related to the way the Internet Explorer browser handles media and plug-ins within Web pages.

Eolas' patent No. 5,838,906 was granted on November 17, 1998. It covers the technique of embedding small interactive programs, including plug-ins, applets, scriptlets or ActiveX Controls, into Web pages.

In August 2003, a Chicago jury ordered Microsoft to pay $521 million to the University of California and Eolas Technology.

Microsoft appealed the ruling in the U.S. Circuit Court of Appeals, where, in January, 2004, a Chicago federal court upheld the jury's decision, and piled on an injunction prohibiting further distribution of IE. The injunction was stayed pending Microsoft's appeal, filed June 3 2004.

After the January court defeat, Microsoft detailed how it would change the IE browser so that it no longer infringed. Because Eolas' patent covers the automatic launch of applets and such, Microsoft said it would require users to okay each launch.

But interactive advertisers who rely on multimedia and applications such as Macromedia Flash feared that changing the browser would greatly reduce the number of ad impressions, because users would often choose not to load the ads. Microsoft quickly decided to wait until the appeal process was completed before changing the browser.

Perhaps stirred by the outcry, the World Wide Web Consortium, which oversees Web standards such as HTML and XML, asked the U.S. Patent Office to review the Eolas patent. In March, patent examiner Andrew Caldwell rejected all ten claims of the Eolas patent, in light of prior art submitted by the W3C, including the draft specifications for Hypertext Markup Language published in June 1993and a post to an Internet news group around that time.

Eolas appealed the USPTO decision, as part of what's known as "patent prosecution," a process to determine whether the patent should stand. Eolas has the right to take its case to the U.S. Supreme Court. Patent prosecution can be a process as lengthy as the appeal of a patent infringement case. Experts say this may be a long, slow race.