W3C home > Mailing lists > Public > public-web-plugins@w3.org > September 2003

Re: If MS pulls plug-in support, who do I sue

From: Hector Santos <winserver.support@winserver.com>
Date: Mon, 8 Sep 2003 20:30:02 -0400
Message-ID: <001801c37669$838ac820$e31a2343@FAMILY>
To: "Richard M. Smith" <rms@computerbytesman.com>, <public-web-plugins@w3.org>

Of course he can sue.  Anyone can take anyone to court, but that's besides
the point.

In my opinion,  Mr. Cowdrey has a perfect valid point and complaint and any
good, no take that back, great software trained lawyer would be able to
raise the arguments addressing the fine point he made.

And on the contrary, the very fact that this was an issue since 1996 makes
the finer point that the key entity involved, namely Microsoft, was
completely aware of the potential liability and damaging repercussions
towards itself and the tertiary market place, and thus any further
development,  promotion, mind molding, marketing of products, technical
solutions or methods related to the technology in question, make Microsoft
negligent and liable to any lost of exclusive income by the tertiary market

Beside there is similar precedence to start with.   When Microsoft pulled
OS/2,  she settled with many companies who had invested millions based on
OS/2 development.    I'm sure if Mr. Cowdrey can show lost in the millions,
then he address it with Microsoft.  It wouldn't be the first time.  Trust

Mr. Smith, all technologist are ignorant on the subject of computer law.  I
sold myself short recently by saying I  was complacent with recent changes.
That is true, however, I am quite familiar with the subject.  I always felt
a majority of software patents filing are weak and would not hold up when
challenged in a court of law.  For that, I admit to being naive.  That is
what makes this case so interesting because it touches base with basic
obvious technology that not even Microsoft can not defend against.   I was
naive to feel that there is no power in Software patents.  Although,
personally, that will change for me and I will begin to patent every
software method that is thought up from here on out,  even more importantly
is that the industry must recognize how this and other nuisance software
patents will begin to shut down progress in the industry.

So based on this, I feel Microsoft should fight this nuisance patent to the
highest degree possible.  There is prior art and obviousness as a defense.
Using the Mr. Pei defense was extremely weak.

In addition,  the USPTO needs help in a mighty big way.  It needs help with
the software industry to show them that software today is a basic form of
expressive communication.   You and I are communicating now in an delayed
fashion.  The thought of patenting the basic idea of telling you to click
this <CHAT WITH HECTOR NOW> tag or click this <ORDER PIZZA> tag is
groundless based on the simple idea that it requires YOU to have software to
honor the request - which is something that is not only obvious but part of
every remote client/server system ever invented and certainly available way
before Mr. Dolye arrived on the scene.   Now, if you invented a way to
transform that click to the next generation of expressive communications
such as Thought Processing Kinetics, then I can see some patentable
concept - a real breakthru!  But to take simple existing technologies and
patent it because it happens to be the current "thing",  the WEB,  then it
is baseless and shouldn't even been considered.  To borrow a phrase from
Dorothy Packer:

                "This is not a patent claim to be tossed aside lightly.
                              It should be thrown aside with great force."

This is the type of argument that must be presented to the USPTO, Congress
and the courts.      This nuisance patent and others guarantee to come soon
enough are going to put a major dent in the industry.


Hector Santos, CTO
Santronics Software, Inc.
305-431-2846 Cell
305-248-3204 Office

----- Original Message ----- 
From: "Richard M. Smith" <rms@computerbytesman.com>
To: <public-web-plugins@w3.org>
Sent: Monday, September 08, 2003 7:24 PM
Subject: RE: If MS pulls plug-in support, who do I sue

> I don't think you can sue anyone.  The only grounds that I can think of
> is if Microsoft explicitly represented that Internet Explorer had no
> patent liabilities.  I've never heard that claim being made.
> In general, patents are a hazard of doing business.  So are competitors.
> Microsoft is currently involved in 30 other patent lawsuits according to
> press reports.
> FWIW, the Eolas patent lawsuit was filed in Feb. 1999.  There has been a
> good bit of press coverage over the suit for the past 4 1/2 years.
> There was also a good bit of press coverage in 1995-6 when Eolas
> announced they were applying for a patent on browser plugins and
> applets.
> There is no reason to think that ActiveX controls will completely
> disappear from Internet Explorer.  My reading of claim #1 of the '906
> patent says that a control must have a display area within a browser
> window.  ActiveX controls which are display-free shouldn't have a
> problem with the patent (INAL, YMMV, etc.).  Also, an ActiveX control
> which opens up its own non-browser window should be fine also (INAL,
> YMMV, etc.).
> Richard
> -----Original Message-----
> From: public-web-plugins-request@w3.org
> [mailto:public-web-plugins-request@w3.org] On Behalf Of Russell Cowdrey
> Sent: Monday, September 08, 2003 6:02 PM
> To: 'public-web-plugins@w3.org'
> Subject: If MS pulls plug-in support, who do I sue
> I've been reading for the past week or so and I don't have a master
> stroke
> to overcome the patent since it seems to be very broad and to me the
> inclusion of mime types or the like is just absurd.  I am with a small
> company that has an interesting new technology which is based on ActiveX
> and
> I just cannot see how my technology will survive if MS pulls support.
> For
> our small company we are talking millions in lost opportunity as well as
> a
> lot of current revenue.  I say all this because the Macromedias of the
> world
> concern me less than the little guy.
> Here is my thing.  If Microsoft was told in 1994 that they were in
> violation
> of patent pending technology but pushed forward and standardized their
> browser on this very technology, then what recourse do I have against
> Microsoft?  I feel that they have created a marketplace under false
> pretenses.  Can I sue the W3C's member organizations for creating a
> public
> standard that was in violation? If I cannot sue either of these two
> parties,
> can I sue the US patent office to demonstrate that this absurd software
> patent is in violation of my rights to due process?  If my company is
> expected to lose millions because a public standard was allowed to be
> patented, then I have to be able to have my day in court.
> I think we are hearing very little from Microsoft because I'm sure they
> are
> trying to weigh the cost of the lawsuits to come over the cost of the
> patent
> infringement.  Their best course of action is to come forward and put
> their
> full weight behind an appeal and to overturn this stupid patent.  I
> really
> think the ramifications are huge.
> I remember using a newsgroup reader on Next around 90 that I'm sure had
> some
> of the mime like features and I think that should be considered a
> hypermedia
> browsing application, but maybe it was just the cool visual interface
> that
> captivated me so. Anyways, as many have stated, the idea of packing a
> reference to an external program had already been done to death and any
> programmer worth a lick would have come up with a suitable solution.
> The thing is we have filed for two patents on our software, but
> purposely
> narrowed the scope to be specific to our area of use so as to not deny
> some
> other programmer the ability to use the solution we came up with in
> other
> fields.   One of the patents could have been very broad.  At the time I
> was
> of the opinion that you did it because everyone else was doing it, but
> now
> I'm firmly in the camp that they should not be allowed.  Losing millions
> will do that to you :-).  Software development moves much to fast for
> anyone
> to keep up with all the new developments and thus stupid patents will
> continue to get issued because of ignorance.  Here is to an end to
> software
> patents.
> Russell
Received on Monday, 8 September 2003 20:29:44 UTC

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