In order to avoid infringing on a controversial patent that it has been struggling to battle in court, Microsoft has decided to change the way Internet Explorer loads embedded ActiveX controls. An update for IE will be rolled out early next year, the company says.

The patent involving the mechanisms used to embed interactive programs in a Web browser is owned by Eolas Technology and backed by the University of California. Eolas successfully sued Microsoft in 2003 alleging IE's plug-in architecture infringed on its patent and was awarded $521 million in damages, which has ballooned to $560 million due to interest.

But following two legal setbacks in its efforts to invalidate the Eolas patent and have the ruling appealed, Microsoft is revisiting that change. In September, the U.S. Patent and Trademark Office upheld the patent despite claims of prior art.

In late October, the U.S. Supreme Court refused to hear an appeal regarding the damages awarded to Eolas. Microsoft says the amount was calculated using worldwide sales of Windows, rather than just those copies sold in the United States where Eolas' patent is enforced.

Microsoft is still planning to appeal the verdict on another legal front, but has opted not to wait for that outcome before changing ActiveX. With Windows Vista set to be "feature complete" by the end of December, Microsoft may have simply run out of time.

The company posted a notice on the MSDN Web site detailing the planned update, along with technical information for developers.

"After a forthcoming update, Microsoft Internet Explorer users will not be able to directly interact with Microsoft ActiveX controls loaded by the APPLET, EMBED, or OBJECT elements," the notice reads. "Users will be able to interact with such controls after activating their user interfaces."

Specifically, ActiveX controls will no longer be activated by default. This means users must first click on the control before it will recognize any input. However, Microsoft has posted instructions on how developers can bypass this restriction through the use of external scripts.

ActiveX controls that do not require interaction will continue to perform as they always have, Microsoft says. The change will likely have little effect on end-users, but may require minor updates to accessibility software that must now recognize an activate controls before taking action.

The update will cover Internet Explorer on Windows 2000, XP and Windows Server 2003. Internet Explorer 7 and Windows Vista will also include the change.