Microsoft Allowed to Argue Invalidity of Eolas Patent

By Scott M. Fulton, III, BetaNews

May 31, 2007, 1:30 PM

Bloomberg News broke the news yesterday that Microsoft will be allowed to argue that patents held by research firm Eolas Technologies regarding the ability to embed functionality in a Web browser page are invalid, when a retrial of Eolas' long-running patent suit begins on July 9.

This ruling was passed down by the US Patent and Trademark Office, even though the Eolas patent's validity was upheld in September 2005, following Microsoft having won its appeal of the original decision earlier in March. The original decision found Microsoft's ActiveX technologies in Internet Explorer to have infringed upon Eolas' conceptual patent.

But a June 2004 legal brief from Microsoft explaining why something as obvious as embedding functionality into a Web browser wasn't deserving of patent protection, has (very) slowly gained momentum, and may have been the catalyst for Microsoft's having won its original appeal.

Now, in the face of recent patent law decisions by the US Supreme Court declaring very abstract concepts including source code non-patentable, that 2004 argument may gain a new head of steam.

Microsoft holds its own patents to similarly-themed technologies, one of which was reportedly reissued by the USPTO just last week. The company may be borrowing some leverage from the fact that the Patent Office would actually do such a thing, to bolster its arguments that Microsoft cannot be infringing upon something the USPTO itself claims is being protected on Microsoft's behalf.

On the other hand, if Microsoft continues to challenge the patentability of embedded functionality when it makes its refreshed case before a new US District Court judge in July, it may find itself once again in an historically ironic position, as it could be simultaneously arguing against last week's USPTO grant to Microsoft.