IE Changes To Avoid Eolas IP

Microsoft changed the way its browser handles ActiveX controls in response to the ongoing Eolas patent infringement suit.

The company gathered about 20 large Web publishers and interactive advertising agencies at its Silicon Valley campus on Friday to brief them about the change — and how they could minimize its effects.

“Now, when an end user goes to a Web site with ActiveX control, before actually interacting with the control, they must first click once to activate it,” said Michael Wallent, general manager of the Windows Client platform. “We believe, for the vast majority of users, this will be an almost invisible change.”

At the meeting, executives explained the change and also showed how publishers could author pages so that additional clicks wouldn’t be required.

Microsoft suggested what it said was a simple workaround for Web developers: Instead of putting the “applet object” tag in the page, load it via an external script.

According to Microsoft, because the Eolas patent covers the automatic launching of applets, this method doesn’t infringe.

Eolas sued Microsoft in February 1999.

In August 2003, a jury awarded Eolas and the University of California $521 million in damages. Eolas then asked the court to block the distribution of IE.

Microsoft countered by proposing to change the 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.

Wallent said that today’s change was much less intrusive than that proposal, which would have required users to click on a dialog box for every control that appeared on a page. Now, users will need to click only once to activate all applets in the page.

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.

The change Microsoft implemented today will impact users of Windows 2000 and XP, as well as Windows Server 2003.

The company will modify its software masters so that all new versions of these products will include the change.

Wallent said Microsoft would release the modified software to OEM partners and into the retail channel early next year. The change also will be included in future security updates to Internet Explorer.

“It takes time to work itself through the channel,” he told “In four to six months, the vast amount of customers will have this behavior.”

In the upcoming Internet Explorer 7 and Windows Vista, the change will be included as a matter of course.

Eolas’ patent was granted on November 17, 1998. It covers the embedding of small interactive programs, such as plug-ins, applets, scriptlets or ActiveX Controls, into online documents.

The patent survived a re-examination by the U.S. Patent and Trademark Office this year. But a Federal Appeals Court sent the parties back to the lower court for a new trial to determine whether the patent was enforceable.

Microsoft had argued that using plug-ins was an obvious strategy that shouldn’t have been patented; moreover, it said Eolas had engaged in inequitable conduct by not disclosing to the USPTO the existence of the Viola browser, which also uses plug-ins and may pre-date Eolas’ demonstration.

Microsoft continues to deny that IE infringes the Eolas patent, and Wallent said that today’s action in no way indicates a change in its stance.

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