Re: FW: Microsoft's patent loss rattles tech community

[William A. Rowe, Jr.]

At 05:47 PM 9/5/2003, David N. Welton wrote:
>"Noel J. Bergman" <[EMAIL PROTECTED]> writes:
>
>> NO ONE should be permitted to have IP rights over public
>> infrastructure standards, except for the body charged with
>> protecting them for the public.  Open Standards must be just that:
>> OPEN.
>
>Oh, I wholeheartedly agree!  I just wanted to point out that these
>guys aren't necessarily a bunch of money-grubbers out to squeeze
>anyone they can get their hands on.

   "Eolas Technologies, a University of California 
spin-off with one employee, 
   no products, a handful of patents and 
100 investors, on Monday 
prevailed 
   in its $521 million patent-infringement suit against Microsoft."

http://zdnet.com.com/2100-1104_2-5063444.html

The question comes down to the one guy and 100 investors (or the majority
shareholders.

Bill 


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RE: FW: Microsoft's patent loss rattles tech community

[Noel J. Bergman]

Brian,

You asked about what evidence there might be that Eolas intends to enforce
the patent against other companies than Microsoft, particularly Open Source
projects.  To quote an article Eolas publishes on their web site
(http://www.eolas.com/PatentWarPendingOverApplets.pdf):

  Eolas plans to provide royalty-free licenses to individual and academic
  users of applets, commercial users would be charged for each piece of
  software that uses the embedded applications.  That charge could range
  from 50 cents per piece of software for heavy users (on the order of 1
  million units) all the way up to $5 per unit for more limited usage.

That is from a 1995 interview with Eolas CEO Mike Doyle, at a time when
Netscape had 75% marketshare.  The discussion is all about Netscape,
Spyglass and Sun, not Microsoft, and makes fairly broad claims regarding the
patent's impact.  Microsoft became the target of litigation only because of
marketshare and opportunism, not philosophy.

Eolas says that they are staking a claim to own the ability to deploy
client-side interactive web applications.  That makes this an Open Source
and Open Standards issue, not a pro-/con-Microsoft issue.  I don't really
care who the particular antagonist(s) and protagonist(s) are in the patent
litigation.  This is about the , , , and 

RE: FW: Microsoft's patent loss rattles tech community

[Noel J. Bergman]

Serge Knystautas wrote:
> Noel J. Bergman wrote:
> > As far as I am concerned, it would be desirable for the W3C should have
a
> > copyright on HTML, XML, etc., and be able to deny the right to use those
> > standards to anyone claiming IP rights over them.  Other standards
bodies
> > should likewise adopt a policy to protect their standards as IP, make it
> > freely available (none of the nonsense where egregious fees are charged
to
> > gain access to the documents), and enforced only to protect the standard
> > from land grabs.

> The W3C does copyright all specs they publish

That's the first clause of the statement, but they don't protect them in
such manner as to use them in an IP battle (the second clause), and that's
the problem.  To quote Simon Phipps from his blog today:

  "one important dimension to the debate that I think is being
   neglected is the lack of protection for standards.  Once a
   technology has, through an open process, been incorporated
   into a ratified standard from a recognised body like W3C, it
   should be impossible to assert patent rights over it unless
   they were asserted during the standardisation process."

I want the Open part of Open Standards to have TEETH.  I won't go so far as
to suggest that a standard should be treated similarly to eminent domain,
but isn't rights trading the way the big boys play the game?  You want to
use my patents, you have to let me use yours.  You want to use an Open
Standard?  You assign your patent rights for use with the Standard, or you
simply don't get to use it.

Eolas, which actually claims a trademark for "invented here", stands for
"Embedded Objects Linked Across Systems."  I'd like to know just how broad
Eolas expects patent coverage.  What about systems where an object is
embedded in a database, and code is loaded locally from anywhere in an
enterprise as necessary to instantiate the object?  Do they believe that
their patent covers query processing for such a system?

David says that "these guys aren't necessarily a bunch of money-grubbers."
I don't want to have to trust in anyone's largesse when it comes to Open
Standards.  Look at the quote from Eolas that they raise in their own
defense: "What if only one best-of-breed browser could run embedded
plug-ins, applets, ActiveX controls, or anything like them, and it wasn't
IE?"  This isn't my claim; it is their claim.  Do we really want a world
where Best-of-Breed is defined by the fact that no one else can implement
the idea?  Do we want a world where there is only one spreadsheet, one word
processor, one browser, one contact manager, one database, one PDA, because
patents protect them from competition?  Ok, those already exist, but what
about the next generation of applications?

--- Noel


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Re: FW: Microsoft's patent loss rattles tech community

[David N. Welton]

"Noel J. Bergman" <[EMAIL PROTECTED]> writes:

> NO ONE should be permitted to have IP rights over public
> infrastructure standards, except for the body charged with
> protecting them for the public.  Open Standards must be just that:
> OPEN.

Oh, I wholeheartedly agree!  I just wanted to point out that these
guys aren't necessarily a bunch of money-grubbers out to squeeze
anyone they can get their hands on.

-- 
David N. Welton
   Consulting: http://www.dedasys.com/
 Personal: http://www.dedasys.com/davidw/
Free Software: http://www.dedasys.com/freesoftware/
   Apache Tcl: http://tcl.apache.org/

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Re: FW: Microsoft's patent loss rattles tech community

[Serge Knystautas]

Noel J. Bergman wrote:
As far as I am concerned, it would be desirable for the W3C should have a
copyright on HTML, XML, etc., and be able to deny the right to use those
standards to anyone claiming IP rights over them.  Other standards bodies
should likewise adopt a policy to protect their standards as IP, make it
freely available (none of the nonsense where egregious fees are charged to
gain access to the documents), and enforced only to protect the standard
from land grabs.
The W3C does copyright all specs they publish 
(http://www.w3.org/Consortium/Legal/IPR-FAQ-2620#holds).  That's 
part of why they can charge 5-figures for W3C membership and sue you if 
you say your product is XYZ compliant if it is not.

NO ONE should be permitted to have IP rights over public infrastructure
standards, except for the body charged with protecting them for the public.
Open Standards must be just that: OPEN.
I don't think you can reduce the topic to this black and white.  W3C and 
JCP are both examples of standards bodies with ownership and openness 
issues.  Apache and FSF take different approaches to achieve this 
OPEN-ness.  But the devil is in the details, so the question is how do 
you protect that openness.

--
Serge Knystautas
President
Lokitech >>> software . strategy . design >> http://www.lokitech.com
p. 301.656.5501
e. [EMAIL PROTECTED]
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RE: FW: Microsoft's patent loss rattles tech community

[Noel J. Bergman]

David,

 ...   what if some other big player were to
acquire or merge with us? What if only one best-of-breed
browser could run embedded plug-ins, applets, ActiveX
controls, or anything like them, and it wasn't IE? How
competitive would the other browsers be without those
capabilities? How would that change the current dynamics in
the Industry?"

Eolas wants us to see it from their perspective, instead of Microsoft's.
How's about from the perspective of Internet Standards?

I believe in open standards.  From my perspective, Eolas is damaging an
Internet Standard.  All of a sudden, the W3C 

Re: FW: Microsoft's patent loss rattles tech community

[David N. Welton]

Brian Behlendorf <[EMAIL PROTECTED]> writes:

> On Thu, 4 Sep 2003, Noel J. Bergman wrote:
> > With respect to the mess of software patents, here is an example where
> > initially most people laughed, "Ha ha, they fed Microsoft!", until it
> > slowly began to dawn on people that this is a huge problem.

> Is there any indication yet that Eolas intends to enforce this
> patent on any open source or free software projects?

Mike Doyle is active in the Tcl comunity - http://mini.net/tcl/212

He has a few things to say here:
http://www.pbs.org/cringely/pulpit/pulpit20021107.html


"It would sure be nice for someone to actually consider all of
this from our point of view, rather than MS's," wrote Doyle in
a recent message to me. "It amazes me that everyone just
assumes that MS will be able to merely write a check and make
the whole thing go away. What if someone went through the
following, purely theoretical, of course ;-), logical
analysis?"

"Is there any practical settlement amount that is worth more
to Eolas than a victory at trial? Considering the facts in the
case and the magnitude of the stakes here, a highly likely
outcome is that it will actually go to trial, and, once it
does, that a jury will award us both damages and an
injunction. Injunction is the key word here. That is what
patent rights provide: the power to exclude. What if we were
to just say no? Or, what if some other big player were to
acquire or merge with us? What if only one best-of-breed
browser could run embedded plug-ins, applets, ActiveX
controls, or anything like them, and it wasn't IE? How
competitive would the other browsers be without those
capabilities? How would that change the current dynamics in
the Industry?"

"One possible scenario is that Eolas would have the power
necessary to re-establish the browser-as-application-platform
as a viable competitor to Windows. That would be an
interesting outcome, wouldn't it? How much would that be
worth? The Web-OS concept, where the browser is the interface
to all interactive apps on the client side, was always a
killer idea. It still is. It lost momentum not because it
wasn't economically or technically feasible, but because MS
made it unlikely for anybody but them to make money on the
Web-client side. Therefore, nobody could justify the necessary
investment to take a really-serious shot at it. It doesn't
have to be that way, does it? Just think of how we could use
this patent to re-invigorate and expand the competitive
landscape in this recently-moribund industry. What if we could
do what the DOJ couldn't, and in the process make Eolas and
everybody else, possibly excluding MS, richer? Wouldn't Eolas
stand to profit more in such a scenario than any kind of
pre-trial settlement could provide? Wouldn't everybody else?"

"The last couple of years in IT seem to have convinced people
that the current status quo will continue indefinitely. They
seem to have forgotten what seemed so obvious as little as
three years ago, that change is the only invariance. That
axiom has always proven out in the past, and I'm certain it
will continue to do so in the future."

It doesn't sound like the sky is about to fall down in this particular
case.

-- 
David N. Welton
   Consulting: http://www.dedasys.com/
 Personal: http://www.dedasys.com/davidw/
Free Software: http://www.dedasys.com/freesoftware/
   Apache Tcl: http://tcl.apache.org/

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RE: FW: Microsoft's patent loss rattles tech community

[Noel J. Bergman]

> Is there any indication yet that Eolas intends to enforce this patent on
> any open source or free software projects?

>From their attorney's web site (and from the UC web site):

Q. Won't this patent put a stranglehold on the Internet?
A. UC seeks fair compensation for the use of the technology made by
Microsoft's Internet Explorer Web browser - use which has allowed Microsoft
to garner majority share in the browser market and, in so doing, reap
billions of dollars in profits.

However, they do NOT stop there.  From ZDNet
(http://zdnet.com.com/2100-1104_2-5063444.html):

---
"Anybody who's making a product that infringes a valid US patent needs to
conduct themselves in accordance with the patent laws," Eolas' lead trial
attorney, Martin Lueck of Robins, Kaplan, Miller & Ciresi, said in an
interview.

"It doesn't matter whether they're making, using, selling or offering to
sell the product -- they have to come to grips with the reality of the
patent... I think anybody who's in the browser business should be taking a
look at this verdict, and obviously, if they need a licence, they should get
one," Lueck said.

Clearly, should Eolas decide to make good on its threats, the more likely
targets would be those companies that generate revenue from browser sales,
such as Apple, HP, Red Hat and Opera.
---
[Tim] O'Reilly and others see the gathering storm around the Eolas case as
an indictment of software patents in general.

"Once again we see the tragedy that software patents represent for the
industry, because they allow legal opportunists to capitalise on the work of
others," said O'Reilly. "That's why software patents are a really bad
idea -- they encourage a kind of land-grab mentality."
---

Last time I checked, Red Hat's browsers were Open Source, and Apple's is
based upon KHTML.  The FFII raised any interesting observation that because
this is a patent, if Microft were to decide that if they are going to pay,
they might as well get an exclusive, they could acquire the exclusive right
to the patent from Eolas, and thus lock out all other platforms from the
technology.  And they would be doing it legally with someone else's patent.

--- Noel




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Re: FW: Microsoft's patent loss rattles tech community

[Brian Behlendorf]

On Thu, 4 Sep 2003, Noel J. Bergman wrote:
> With respect to the mess of software patents, here is an example where
> initially most people laughed, "Ha ha, they fed Microsoft!", until it
> slowly began to dawn on people that this is a huge problem.

Is there any indication yet that Eolas intends to enforce this patent on
any open source or free software projects?

Brian


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