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Re: Eolas files motion to enjoin IE

From: Bob Monsour <bob@bobmonsour.com>
Date: Wed, 8 Oct 2003 17:37:08 -0400
Cc: <public-web-plugins@w3.org>
To: "Richard M. Smith" <rms@computerbytesman.com>
Message-Id: <9170B896-F9D7-11D7-9491-000393C949B8@bobmonsour.com>

I don't think that the article has anything to do with Eolas' view of 
the MS workaround. It is normal practice for the winner of a patent 
infringement suit to see a permanent injunction. That is their right as 
the patent holder. We did a similar thing when I was at Stac in the 
Stac v. Microsoft case for infringement of our compression patents (for 
those who remember Stacker, the disk compression product). This was 
back in 1994. We were able to obtain a rather painful injunction that 
would've required MS and all the PC OEMs to remove their doublespace 
compression technology from systems on store shelves (not end users). 
We were granted the injunction and then under pressure from the OEMs, 
we wound up entering settlement negotiations and settled.

There is still a lot of legal room for MS to run. Even if the 
injunction is granted, MS can request a stay, pending appeal. I'm not a 
lawyer, but have seen some of this first-hand. It won't be over for a 
while, unless Eolas really winds up in what MS considers "reasonable" 
license territory.

There's a lot of negotiating going on that we're not seeing and it's 
happening at the court level.


On Wednesday, October 8, 2003, at 04:38 PM, Richard M. Smith wrote:

> I guess Eolas didn't like Microsoft's work-arounds to the Eolas 
> patent. ;-)
> Richard
> -----Original Message-----
> From: public-web-plugins-request@w3.org
> [mailto:public-web-plugins-request@w3.org] On Behalf Of Mike Leach 
> (Cubic
> Compass)
> Sent: Wednesday, October 08, 2003 3:55 PM
> To: public-web-plugins@w3.org
> Subject: Eolas files motion to enjoin IE
> http://news.com.com/2100-1028_3-5088349.html?tag=nefd_top
> Eolas files motion to enjoin IE
> Last modified: October 8, 2003, 11:29 AM PDT
> By Paul Festa
> Staff Writer, CNET News.com
> Eolas Technologies on Monday filed a motion to permanently enjoin
> Microsoft's distribution of its Internet Explorer browser amid a 
> flurry of
> court filings by both sides in the pivotal patent-infringement case.
> Eolas, the sole licensee and sublicensor of a browser plug-in patent 
> owned
> by the University of California, asked the U.S. District Court in 
> Chicago
> for an injunction against distributing copies of IE capable of running
> plug-in applications in a way covered by the Eolas patent.
> "If they're not going to pony up and take a license under the patent, 
> then
> they shouldn't be using it," Martin Lueck of Robins, Kaplan, Miller & 
> Ciresi
> said in an interview.
> The Eolas patent-infringement victory has rattled the Web since it was
> handed down in August. In its verdict, a jury found that Microsoft's IE
> browser infringed on an Eolas patent that describes how a browser opens
> external applications of the type produced by Macromedia, Adobe 
> Systems,
> RealNetworks, Apple Computer, Sun Microsystems and many other software
> providers.
> Lueck said Eolas would still permit Microsoft to distribute IE as is, 
> as
> long as it's being used in conjunction with an application provider or
> corporate intranet that has an Eolas plug-in license.
> So far, Eolas has not granted any such licenses.
> Lueck also noted that, should the motion be granted, Microsoft still 
> could
> distribute IE with the plug-in capability disabled.
> Microsoft said it is well on its way to side-stepping both the patent 
> and a
> potential injunction with an IE alteration it previewed Monday, a 
> version of
> which it expects to introduce early next year in its next version of
> Windows, code-named Longhorn.
> Lueck and Eolas founder Mike Doyle said they were in the process of
> examining the IE preview and would not comment on its merits.
> Microsoft on Monday filed motions to set aside the $521 million 
> judgment and
> to grant it a new trial.
> "As our court papers outlined (Monday), we believe we have substantial
> grounds for reconsideration by the judge," said Michael Wallent, a 
> general
> manager in Microsoft's Windows division.
> The Redmond, Wash., software giant asked for the new trial based on 
> several
> factors, including the unusual proportions of the jury's judgment and 
> the
> court's refusal to allow discussion of some prior art or similar 
> technology
> that Microsoft believes predated the Eolas patent and should therefore
> invalidate it.
> The motions Microsoft filed Monday are prerequisites for appealing the 
> case
> to the U.S. Court of Appeals, which the company has pledged to do.
> Microsoft also said it was preparing to challenge Eolas' demands for 
> the
> court to update the damages award to include the period of September 
> 2001 to
> the present. That could raise the amount of the award by hundreds of
> millions of dollars, though both sides declined to give a more exact
> calculation.
> The $521 million award was calculated based on units Microsoft 
> distributed
> between October 1998 and September 2001. Eolas has also calculated that
> Microsoft owes it about $111 million in interest on that award.
> Even as both sides escalated the post-trial battle with the Monday 
> fillings
> and Microsoft's IE preview, Lueck called changes to IE unnecessary and
> reiterated that Eolas was willing to offer Microsoft a paid-up license 
> in
> exchange for the standing jury verdict plus interest.
> "Eolas and the university are willing to resolve the case on a very
> reasonable basis," "In view of the amount of the verdict and the 
> accrued
> prejudgment interest, we'd be willing to give them a paid-up license, 
> if
> they were willing to take out a license."
> Lueck warned that the offer was not indefinite.
> "That might change in the future if they continue to refuse the deal," 
> he
> said. "The quid pro quo would be settle it now, not force us to 
> litigate for
> two, three, four years or whatever it is that they have in mind."
> Microsoft contested Lueck's characterization of the offer as 
> "reasonable,"
> and said the company preferred to pursue its workaround strategy than 
> sign a
> deal.
> "In addition, the changes we rolled out for IE are modest and will not 
> have
> significant impact on consumers or the Web community as a whole," said
> Microsoft's Wallent. "Based on that, the idea that we would pay more 
> than
> $630 million to get rid of a single mouse click on a small fraction of 
> Web
> pages is not something that we're entertaining."
> Wallent based the "more than $630 million" figure on the $521 million
> verdict and a $111 million interest claim by Eolas.
Received on Wednesday, 8 October 2003 18:23:51 UTC

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