Eolas strikes back; Microsoft prepares appeal

From http://news.com.com/2100-1032_3-5210492.html 

 

The patent battle between Microsoft and the University of California's Eolas
spin-off is heating up again, with each side pressing its case before the
government. 

The University of California and Eolas filed a response to the U.S. Patent
and Trademark Office, two months after the office's director issued a rare
re-examination of the Eolas browser patent that has Microsoft scrambling.

Attorneys for UC and Eolas filed on Tuesday the 10-page response and two
declarations, a day before the expiration of a 60-day deadline set when a
USPTO examiner released preliminary findings that would invalidate the
patent if formally endorsed.

While Microsoft is not formally involved in the re-examination process, it
is preparing its own appeal to a
<http://news.com.com/2100-1023_3-5141318.html?tag=nl> $521 million patent
infringement decision it lost to UC and Eolas in federal district court last
year.

A representative for the University of California expressed confidence the
patent would prevail both in court and at the patent office.

"The court case was a slam dunk," said UC representative Trey Davis. "Part
of the interest in the patent office re-examination is that Microsoft is
using it essentially as a back door to win the case when they couldn't win
it in court."

The federal district court jury ruled against Microsoft after agreeing with
UC's contention that Microsoft's market-dominating Internet Explorer browser
infringed on Eolas' patent describing how a browser can open plug-in
applications.

In response, Microsoft proposed changes to IE that would bypass the patent
but potentially hobble millions of Web pages. That prospect helped bring Web
developers and the World Wide Web Consortium (
<http://dw.com.com/redir?destUrl=http%3A%2F%2Fw3.org%2F&siteId=3&oId=2100-10
32-5210492&ontId=1023&lop=nl_ex> W3C), a key standards body, to Microsoft's
side.

The W3C asked that the USPTO revoke the patent, and USPTO's director at the
time, James Rogan, ordered the re-examination.

The re-examination process can take years to complete, and primarily
involves a dialogue between the examiner and the patent holder, in this case
UC and Eolas.

Microsoft declined to comment on UC's Tuesday filing to the USPTO, saying it
had not yet had a chance to review it.

Microsoft's filing next week will launch an appeals process that could wrap
up this winter, said an attorney for UC.

An attorneys for UC and Eolas expressed confidence in their prospects at the
court of appeals.

"Every case we try, we do so knowing that it's likely to be appealed at the
federal circuit," said UC and Eolas attorney Marty Lueck. "We believe that
the trial court made no errors of law and the jurors' verdict is supported
by substantial evidence, so we believe we should win."

The substance of UC's response concerns examples of so-called prior art, or
technology that predated a patent application that would prove it wasn't an
original invention.

In its request for a re-exam, the patent office cited two examples of
technology the office said was substantially similar to what the Eolas
patent described. Both were published prior to the UC-Eolas patent by Web
developer Dave Raggett.

Eolas also submitted two declarations, one by Eolas founder and patent
inventor Mike Doyle, the other by Princeton University computer scientist Ed
Felton, who was a lead prosecution witness for UC and Eolas at trial.