[Infowarrior] - The Web’s longest nightmare ends: Eolas patents are dead on appeal

[Richard Forno]

The Web’s longest nightmare ends: Eolas patents are dead on appeal

Web pioneers united to stop "interactive web" patents at an East Texas trial.

by Joe Mullin - July 22 2013, 10:41pm EDT

http://arstechnica.com/tech-policy/2013/07/the-webs-longest-nightmare-ends-eolas-patents-are-dead-on-appeal/

The inventor of the Web, Tim Berners-Lee, had never testified in court before last year. In February 2012, he left Cambridge to fly down to Tyler, an east Texas city of about 100,000, to testify at a patent trial. It was the culmination of a bold campaign by a man named Michael Doyle to levy a vast patent tax on the modern web.

Berners-Lee was one of several web pioneers who came through the court during the course of a four-day trial, which ultimately convinced a jury to invalidate two patents owned by Eolas, the tiny patent-holding company that Doyle and his lawyers transformed into one of the most fearsome "patent trolls" of all time.

Now Eolas appears to be gone for good. The company mounted a lengthy appeal, but it was all for naught; this morning, a three-judge appeals panel affirmed the jury's verdict without comment.

In 1993, Doyle was the director of a computer lab at the University of California-San Francisco. He oversaw the creation of a program that allowed doctors to view embryos online, and later claimed it was the first "interactive" use of the World Wide Web. University lawyers helped Doyle patent the creation in 1994.

Doyle took the patent and created a company he called "Eolas," the Irish word for knowledge. Eolas never made a marketable product, but it ultimately launched a patent war that made Doyle a rich man. In 1999, he filed a lawsuit saying that Microsoft's Internet Explorer violated his patent on "interactive" features on the web; the suit resulted in a $540 million jury verdict. Appeals ensued but were inconclusive; the case ultimately settled out for more than $100 million, with just over $30 million going to Eolas' co-plaintiff, the University of California.

Meanwhile, Eolas' original patent was getting serious attention. It was actually denounced by the web's global standard-setting body in 2003. That resulted in an unusual director-ordered reexamination at the US Patent Office, but Eolas somehow emerged unscathed.

Eolas got a second patent similar to its first in 2009. By then, the business of "patent trolling" had matured and become fantastically lucrative. The company relocated to East Texas before filing suit against 20 big companies, including Apple, Perot Systems, Blockbuster, eBay, Adobe, Google, Yahoo, and Amazon. Court documents show the company was seeking more than $600 million in January 2012, a damage demand that likely had inflated to more than $1 billion by the time of trial.

The ensuing patent campaign earned Doyle, and his lawyers, tens of millions of dollars. Doyle lives in Chicago, where has given interviews to local media about his philanthropic efforts, but he has steadfastly refused to discuss his inventions or the ensuing lawsuits, except when compelled to do so during litigation. By the end of the 2012 jury trial, only Google, Yahoo and JC Penney had not struck deals with Eolas.

Appeal loss shuts down three other lawsuits

Under Doyle's conception of his own invention, practically any modern website owed him royalties. Playing a video online or rotating an image on a shopping website were "interactive" features that infringed his patents.

And unlike many "patent trolls" who simply settle for settlements just under the cost of litigation, Doyle's company had the chops, the lawyers, and the early filing date needed to extract tens of millions of dollars from the accused companies.

Eolas had kept filing lawsuits even after its trial loss, with cases against Disney, ESPN, ABC, Facebook, and Wal-Mart on hold awaiting the outcome of this appeal; those are all but doomed. Those lawsuits had asserted the two invalidated patents as well as two new ones, but the two newer patents both incorporate Eolas' first patent.

The patent-holding company's lawyers stayed those new cases voluntarily, acknowledging that the appeal would have a "material effect" on their case.

The role of the University of California is one of the most perplexing twists in the Eolas saga. The university kept a low profile during the lead-up to trial; but once in Texas, Eolas lawyers constantly reminded the jury they were asserting "these University of California patents." A lawyer from UC's patent-licensing division described support for Eolas at trial by simply saying that the university "stands by its licensees." (Eolas was technically an exclusive licensee of the UC-owned patent, which also gives it the right to sue.)

At the same time, the University of California, and the Berkeley campus in particular, was a key institution in creating early web technology. While UC lawyers cooperated with the plaintiffs, two UC Berkeley-trained computer scientists were key witnesses in the effort to demolish the Eolas patents.

Pei-Yuan Wei created the pioneering Viola browser, a key piece of prior art, while he was a student at UC-Berkeley in the early 1990s. Scott Silvey, another UC-Berkeley student at that time, testified about a program he made called VPlot, which allowed users to rotate an image of an airplane using Wei's browser. VPlot and Viola were demonstrated to Sun Microsystems in May 1993, months before Doyle claimed to have conceived of his invention.

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