BTG claims in a lawsuit against Microsoft and Apple
that Web-enabled software update technologies used by both infringe on the
patent awarded to Teleshuttle Technologies. BTG, a company that licenses and
manages intellectual property, has exclusive worldwide licensing rights to
the patent.
The suit was filed in Federal Court in the Northern District of
California following BTG’s unsuccessful attempts to get the Redmond,
Wash.-based software vendor and the Santa Clara, Calif.-based software,
hardware and peripherals supplier to license the technology on “commercially
reasonable terms.”
Hardly a week goes by without another submarine
patent surfacing. The latest is patent no. 6,557,054, a “method and
system for distributing updates by presenting directory of software
available for user installation that is not already installed on user
station.”
BTG spokesperson Christopher DeFusco said the company also is suing
Microsoft separately over the Active Desktop and offline browsing
capabilities in its Windows operating system and Microsoft Office
productivity suite.
Microsoft spokesperson said that the company does not comment on
litigation. Apple executives didn’t respond to requests for comment.
“Litigation is the ultimate step in the natural progression of these
proceedings,” DeFusco said. “It’s always our desire and intention to reach a
negotiated settlement with these companies.”
DeFusco said that BTG has offered licenses to several other companies in
the last eight to ten months, but so far none have licensed the technology.
He said the auto-update patent might cover not only software upgrades,
but also, in principle at least, content refreshing. That could put
applications like WeatherBug, the free desktop application that streams live
neighborhood weather conditions, in BTG’s sights. Claria, provider of a
contextual advertising service that delivers ads to the desktop, also could
be at risk.
“We are focusing on Microsoft and Apple at this point in time,” he said.
“We haven’t ruled out other users of this technology.”
Microsoft is no stranger to patent infringement suits. On Friday, Eolas
Technologies filed a brief arguing against Microsoft’s petition to overturn
a $512 million judgment for patent infringement. Eolas, a University of
California spin-off, claims patent rights to embedding small interactive
programs, such as plug-ins, applets, scriptlets or ActiveX Controls, into
online documents. Last August, Microsoft lost a jury trial in the case and
was hit with a $521 million judgment, as well as an injunction against distribution of its
Internet Explorer browser. Microsoft lost again on appeal.
Microsoft argued that the courts were wrong to limit the introduction of
information about an early browser, Viola, that Redmond claimed was an
example of “prior art,” a similar invention to Eolas’ that appeared earlier.
“We respectfully contended that the District Court erred multiple times
on issues related to prior art and claim construction and the defense based
on the inventors’ fraud on the patent office, and that the Court’s errors
fundamentally and profoundly distorted the proceedings,” Microsoft attorneys
Sidley Austin Brown & Wood said in a statement.
In the brief filed last Friday, Eolas countered that Viola doesn’t
include all the elements of Eolas’ patent. According to the brief, the Viola
browser was designed to work on a single computer, not in a distributed,
hypermedia network environment. Neither was it public: While Viola was
demonstrated to a group of engineers at Sun Microsystems
the brief details the efforts of its inventor, Pei Wei, to limit who could
see it.
There’s also a dispute about the size of the judgment. Microsoft claims
that its export sales should be deducted. According to Microsoft, because
the company only sends foreign OEMs a master CD of Windows software and IE,
its software is not really a component of the machines and therefore doesn’t
infringe Eolas’ patent. According to Eolas, it does too.
Microsoft will file its reply on July 30. Oral arguments will likely take
place in the fall.
