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Mark Nelson

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The Mother of all Software Patents

October 07, 2009

Today I received a press release from Eolas Technologies in which they took great pleasure in announcing that they were going to sue just about anyone with a web presence, based on the technology they own via US Patent 7,599,985. In their words, this patent:

...allows websites to add fully-interactive embedded applications to their online offerings through the use of plug-in and AJAX (asynchronous JavaScript and XML) web development technique.

Apparently this has led them to sue, among others, Adobe, Apple, Amazon - and that's just the A's.

Clearly this is a matter for some concern - if AJAX is patented, we're all in trouble - so I tried to dig up some more data on the patent. There is a lot of history on a patent that Eolas prosecuted as a precursor to this one, US Patent 5,838,906. When Eolas started making noise about protecting this patent, it alarmed people enough to move W3C into action. Microsoft eventually made what appears to be a substantial payment to Eolas after losing at trial.

It's hard to tell whether Eolas is a real company or simply a convenient object to use in litigation. They do have some products listed on their web page, but the roster is pretty underwhelming. What's more interesting is that the work that created these patents was performed at the University of California, San Francisco, and the patents are assigned to the Regents of the University of California . The Eolas web page says the company was founded to assist the University in commercializing the patent.

If you don't like software patents, these two patents are going to make you sick. Even if you are in favor of software patents, it's a little hard to understand how work done at taxpayer expense can then be used to make life difficult for everyone who adds a little JavaScript to their web page.

As for the validity of the patents under current law, it doesn't really matter what you or I think. What matters is what the courts think, and according to Eolas, they have given the green light to the ‘906 patent in multiple reviews. Anyone out there who can come up with some prior art is welcome to try, but Microsoft apparently thought it was a lost cause.

The ‘985 patent is going to be particularly dangerous. Although it was filed August 9, 2002, it wasn't granted until this week. Which means it is going to be in force for twenty years. Do you think web applications are going to be a significant factor in our life for the next twenty years? Then you'd better get used to seeing Eolas getting a little bit of every penny made using a browser.

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