Back to Court for Eolas and Microsoft - Page 2

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The decision brightens an area of the law that was somewhat murky, Rabena said. "The federal court clarified the law to say that there are only two categories of abandoning an invention. This didn't fall into either category. I think a number of people didn't recognize that in the law before."

Rabena said there are two ways an inventor can abandon an invention: by an unreasonable delay in filing for a patent, perhaps because the inventor had other irons in the fire, or by not disclosing it because he wanted to keep it secret so he can make money on it. The district court ruled that Wei's actions fell into the latter category; the higher court disagreed.

Rabena said the most significant part of today's ruling is that the new jury will have to consider Microsoft's defense that the Eolas patent is invalid because Eolas engaged in inequitable conduct -- or withholding information -- an argument that can be more powerful in front of a jury than quibbles about prior art.

"To [be able] to argue that [this company] is trying to get money from us, and they're sleazy, that's an emotional argument that will turn a jury a lot faster than boring facts about who did it first," Rabena said.

A battle on Two Fronts

The battle over plug-ins is being fought on another front, as well.

When an appeals court upheld a ruling against Microsoft, in October 2003, the World Wide Web Consortium weighed in, asking the Patent Office to reconsider. When the USPTO agreed in November, the W3C presented prior art in the form of early drafts of the HTML specification, e-mails from the W3C's Dave Raggett and a paper by George Toye, referring to NoteMail, which was part of a collaborative Internet communication project called SHARE.

Based on that information, patent examiner Andrew Caldwell rejected the claims of the Eolas patent in an initial review. But that was only the first step in a process that could take another year.

Dan Ravicher, executive director of the Public Patent Foundation, said the ruling wasn't a clear victory for patent reformers. "[The appeals court] could have changed the claim construction to interpret the patent more narrowly, in a way that Microsoft doesn't infringe." Instead, the higher court upheld the broad reading.

The Public Patent Foundation is dedicated to fighting overly broad patents -- and has instituted a Microsoft patent watch. Although it's not participating in the fight to overturn the Eolas patent, it finds itself on Redmond's side in this one. "This patent is one that could cause the public significant harm," Ravicher said. "At this time, Microsoft's interests are aligned with the publics interest against the patent."