Patent office to re-examine Eolas patent

The U.S. Patent and Trademark Office has stepped squarely into a fight roiling the Web by agreeing to re-examine the Eolas patent for a browser plug-in, a development likely to bring cheer to Microsoft and software patent foes alike. The 906 patent, owned by the University of California and licensed exclusively to one-man software company Eolas, describes how a Web browser can use external applications. The patent also earned that school and company a $521 million judgment after a federal jury found that Microsoft's Internet Explorer browser infringed on it.

After Microsoft made public planned changes to IE that held the potential to break millions of Web sites, the World Wide Web Consortium (W3C) last month urged the USPTO to re-examine the so-called 906 patent in light of W3C technologies that it said predated Eolas' patent. Specifically, the consortium pointed out early HTML drafts by W3C Director Tim Berners-Lee and W3C staff member Dave Raggett that it said qualified as prior art in the case.

The W3C's public call came as part of a larger campaign to identify prior art relevant to the Eolas case. Prior art is a similar invention that predates a patent, therefore invalidating it. The USPTO responded quickly to the W3C's request, and on Oct. 30 the office initiated an order for re-examination. On Monday that order was docketed to the patent examiner. "A substantial outcry from a widespread segment of the affected industry has essentially raised a question of patentability with respect to the 906 patent claims," Stephen Kunin, the USPTO's deputy commissioner for patent examination policy, wrote in his order for re-examination. "This creates an extraordinary situation for which a director-ordered examination is an appropriate remedy."

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