W3C Calls for Reversal on ActiveX Patent

Warning that the enforcement of U.S Patent No. 5,838,906 could cause “substantial economic and technical damage” to the operation of the Internet, the World Wide Web Consortium (W3C) on Wednesday called for an immediate re-examination of the patent that is forcing major changes to the world’s most popular Web browser.

“The impact of this patent will be felt not only by those who are alleged to directly infringe, but by all whose web pages and applications that rely on the stable, standards-based operation of browsers threatened by this patent,” W3C director Tim Berners-Lee declared in a letter to the United States Patent and Trademark Office (USPTO).

Changes brought about by the patent enforcement would likely bring a wide variety of common Web applications to their knees. Online advertisers, marketers, and Web developers have, for example, grown increasingly dependent on Macromedia Flash technology, which would be virtually hobbled by the changes resulting from the patent enforcement.

In many cases, Berners-Lee argued that the companies that will force to incur the cost of modifying Web pages or software applications do not even themselves infringe the patent — assuming it is even valid.

The USPTO confirmed receipt of the W3C request and said a decision on whether the patent will be re-examined could be made within 90 days.

“There is a process for re-examination. We have received the W3C request and it will go through that process. If there are substantial new questions raised, it can lead to a re-examination,” said Ruth Nyblog, a spokesperson of the USPTO.

Nyblod told internetnews.com the W3C’s filing would go through the USPTO’s legal process before a decision is made. “It could be made within a day or it could be 90 days. It all depends on our review of the request,” she explained.

If a patent re-examination is ordered, the process could take about 18 months to be resolved, Nyblod said.

The controversial patent, which is at the heart of a dispute between Microsoft and Chicago-based Eolas Technology, covers technologies for the creation of a Web browser system that allowed for the embedding of small interactive programs, such as plug-ins, applets, scriptlets or ActiveX Controls, into online documents. (See our Special Report).

Faced with a $521 million patent infringement verdict, Microsoft has already spelled out changes it will make to its Internet Explorer browser.

Specifically, Microsoft will change the browser’s behavior to prompt the user to determine whether an ActiveX control is loaded or whether to display alternate content. The modification effectively means that users visiting Web pages that have not been updated will be presented with a dialog box before the ActiveX Control is loaded by the browser.

But, according to the W3C, there is prior art available to the USPTO to render the patent invalid. “Based on our investigations, we feel we have a prior art to provide conclusive evidence of the invalidity of the ‘906 patent,” W3C spokesperson Janet Daly told internetnews.com.

PRIOR ART

The W3C’s HTML Patent Advisory Group has put together prior art which it claims will establish that the Eolas patent is invalid and “should therefore be re-examined in order to eliminate this unjustified impediment to the operation of the Web.”

Berners-Lee, in a letter to U.S. Under Secretary of Commerce for Intellectual Property James E. Rogan, said that critical prior art was never considered at the time the patent was initially examined and granted. During the recent patent infringement litigation, the prior art was again not examined, he argued.

According to the standards-setting body, the object embedding technology being claimed by Eolas has been a part of the HTML standard since the early days of the Web. “This feature provides critical flexibility to Web browsers, and giving users seamless access to important features that extend the browsers’ capabilities. Nearly every Web user today relies on plug-in applications that add services such as streaming audio and video, advanced graphics and a variety of special purpose tools,” the group said.

It warned that changes enforced by the Eolas patent will have a “permanent impact on millions of historically important Web pages,” including pages with non-commercial content or older material that is not generating revenue.

“As a result, there is no way to cover the cost of modifying those pages to bring them into compliance with whatever changes are made in response to the ‘906 patent,” the group argued.

More worrying, the W3C added, is that the enforcement of the patent would have a “disruptive impact” on established Web standards. It said Web developers who have followed Web standards for embedding objects will face a need for additional work, as browsers are re-engineered to avoid the patented features. “Even though page authors haven’t violated the patent, they will still bear the cost of rewriting Web pages or software applications, as browsers will no longer be able to perform in the manner they once did,” the group said.

“The ‘906 patent will cause cascades of incompatibility to ripple through the Web. Yet, it’s not too late to remedy this problem. The material W3C presented in its Section 301 filing clearly establishes that the ‘906 patent is invalid,” the W3C said.

Microsoft officials declined comment on the W3C move, noting that the software giant is going through with its appeal of the patent infringement judgment.

Eolas has since filed for an injunction to permanently enjoin Microsoft from distributing the Internet Explorer browser. If granted, the injunction would stop Microsoft from shipping any version of Internet Explorer or the Windows operating system which includes the patented technology.

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