Everyone loses in this patent case

Sometimes it's not easy being an 800-pound gorilla. Pity poor Microsoft, recently on the nasty end of a $US521 million judgement in a patent infringement case.

Sometimes it’s not easy being an 800-pound gorilla. Pity poor Microsoft, recently on the nasty end of a $US521 million judgement in a patent infringement case.

As noted in this column last week, the court found that Microsoft had violated an Eolas patent that covers objects in web documents, where the object accesses some form of external data. That's a very broad definition, and appears to cover a number of common web technologies, including embedded Java applets, ActiveX controls and Flash animations.

It's obvious why Microsoft is concerned about this, and it's not alone. Last month the W3 Consortium, a quango that attempts to guide standard development on the web, organised a private meeting in San Francisco to discuss the problem. COO Steven Bratt said the meeting was called “to evaluate potential near-terms changes … in browsers, authoring tools, and websites as a result of the court case.”

I'm not a lawyer, and of course few people are prepared to stick their head above the barricade and say what is and what isn't infringing, but we'll glean what we can from reports to date. (For the raw data, visit the USPTO website and search for patent 5,838,906.)

For now, Redmond is playing its cards close to its chest, but Bratt says the company presented several options at the meeting in San Francisco. We can guess what a few of those are.

1. Do nothing and hope to win on appeal. That’s a risky path, which would leave Microsoft open to an even larger judgement. It’s probably not a great decision to thumb the corporate nose at the judiciary too often.

2. Release a new version of IE that doesn’t support plug-ins. This would have the advantage of making a dramatic point as the web suddenly becomes a much less interesting place. Of course, users would be asked to install the new version of IE, which many would decline to do. That might seem the ideal solution, but it would cause huge problems next time someone releases an exploit for IE.

3. Support rich media natively. This would mean building support for Flash, ActiveX et al into the browser. Politically, this would be fraught — although it wouldn’t be hard for Microsoft to support Windows Media and SVG within the browser, it’s most unlikely competitors such as Apple and Macromedia would be happy to give Microsoft the source for QuickTime or Flash. Regulatory authorities would take a close look at a browser that supports Microsoft technologies but not the competition.

4. Change the way plug-ins interact with the user. The Eolas patent specifies user interaction, so it might be possible to remove the interactive behaviour of some media. Unfortunately, that’s one of the strong points of technologies such as Flash.

5. Get a licence from Eolas. If this were likely, it would have happened before now. There’s no reason why Microsoft should encourage IP litigants; there are many more queued up in Eolas’ shadow.

Really, once we’ve all chuckled at the irony of Microsoft being skewered in a patent case, there’s nothing in this ruling for anybody to be happy about. Should it be upheld, browser manufacturers have the choice of paying the Eolas tax or reducing the user experience; content providers will find it harder to get their wares to the consumer; webmasters have a horrendous job ahead rejigging their websites; and the user is about to lose a great deal of the internet experience.

Who will choose to improve the web now, and risk an Eolas-like judgement? The web was so successful precisely because it wasn’t built on proprietary technology. There is little in Berners-Lee’s World Wide Web that hadn’t been done before, but it won out over competing technologies such as Ted Nelson’s Xanadu because it was simple and it was free for anyone to adopt and build on.

If this is the future of the web — where obvious and evolutionary improvements are stifled because of the claims of IP speculators who deal in patents rather than products — then it will die.

That won’t be good for anybody involved in this litigious mess, because the only technology able to route around the broken legal system and provide a rich interface to the masses is exactly what many of them fear the most: P2P.

Perhaps your next internet client is being written in Romania or China right now.

Cooney is an Auckland reporter for Computerworld. Send letters for publication in Computerworld to Computerworld Letters.

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