The Eolas Patent: Don’t Be a Victim

y now, most Web developers know that Eolas and the University of California (UC) sued Microsoft over a patent infringement related to the , , and tags used to launch external applications embedded in Internet Explorer (IE). The lawsuit claimed that the idea to seamlessly embed and interact with external applications via the World Wide Web was invented by Michael Doyle when he was the director of the UC academic computing center. UC applied for a patent for this idea, and later granted Eolas (founded by Doyle) exclusive rights to the pending patent in 1995. Even back in 1995, the patentability of the idea was seriously questioned by a large number of people (for an interesting slice of history, see http://lists.w3.org). The content of many of those messages indicates that, even then, most people didn’t believe the U.S. Patent Office would actually issue the patent, because the concept of embedding one application in another certainly wasn’t new or unique.

Microsoft lost the patent lawsuit, and was fined $521 million dollars. Microsoft plans to appeal the ruling immediately. Many people hope that Microsoft will win on appeal. Others, applauding the ruling, feel that Microsoft got what it deserved, and hope the ruling stands on appeal. While the outcome of the appeal is important for future patent cases, whether Microsoft wins in the long run doesn’t change one fact: the lawsuit has produced nearly immediate and adverse effects.

Adverse Effects
The ruling is likely to affect you?either as a Web developer, or as a Web consumer. First, despite the fact that Eolas’ lawsuit targeted only Microsoft, every other commercial browser on the market that can run embedded content seamlessly is in infringement as well, and will eventually have to do something to solve the problem. Therefore, if Eolas wins the appeal, Netscape, Opera, and Sun will have to make changes to their browsers as well.

To avoid infringing on Eolas’ patent, and to limit the possibility of future damages, Microsoft has announced it will alter the way IE works, so that such embedded applications won’t be “seamless.” Instead, IE will pop up a message box before launching such content. Users would have to click OK to see the content. Alternatively, users can change a new IE advanced setting, which will defeat the prompt permanently?but also denies IE the ability to show the embedded content unless users explicitly provide permission.

Here’s the relevant text from the Microsoft announcement.

“The solution developed by Microsoft has two main parts:

  • First, Microsoft will make minor changes to Internet Explorer’s handling of some Web pages that use ActiveX Controls, such as Macromedia Flash, Apple QuickTime, RealNetworks RealOne, Adobe Acrobat Reader, Sun Java Virtual Machine and Microsoft Windows Media Player. It is currently anticipated that this change will be deployed by early next year. If Web developers have not updated their Web pages using the techniques suggested by Microsoft and others, users may see a simple dialog box before the browser loads the ActiveX Control.
  • Second, Microsoft and other industry partners are working to provide documentation for Web developers that describe how to author Web pages so the dialog box would not be necessary.”

Workarounds
You can (and should) read the “techniques suggested by Microsoft” mentioned earlier (see the document “Changes to the Default Handling of ActiveX Controls by Internet Explorer“) because there are workarounds?ways you can change your HTML and server responses to avoid the prompt dialog.

In a nutshell, the “Changes” document explains how IE determines when to display the prompt, and describes methods that you can use to avoid the prompt. Basically, you can use ActiveX controls when they either don’t have any child tags, or when those child tags don’t reference any external content via a URI.

When a control does access external data, you can load the control via a script placed in an external file, not in the main page, useable via a function called from the main page. That script uses the document.write() method and/or the innerHTML property of

or tags to create the tag dynamically and set its properties. You can also defeat the prompt by adding the new attribute NOEXTERNALDATA=”true” to the tag itself. Adding the attribute informs IE that it’s “safe” to use the embedded object?but also prevents the embedded object from using any tag that references an external URI. Finally, you can sometimes replace tags that reference external URIs by using the DATA attribute, using base64-encoded data, or supplying the base64-encoded data via the VALUE attribute of a tag.

Obviously, having to change the content of the enormous number of pages that do use tags is going to be both expensive and time-consuming. Further, it’s highly likely that users will upgrade to the newer IE version (and thus see the prompt) far more rapidly than developers can change their HTML pages. This lag means that some users will have to get used to clicking the OK button to get rid of the prompt, and others will change their settings to avoid the prompt (and probably the content) altogether.

Outrage and Intellectual Extortion
When Microsoft announced these changes, it produced a flurry of outrage among Web developers, particularly those who create embedded content, such as the Flash community. Many feel that, having lost the lawsuit, Microsoft should have purchased a license from Eolas, rather than making changes to the browser that force developers to modify their pages.

Eolas supposedly made an offer to issue such a license, but there’s no official confirmation or acknowledgement of that offer from Microsoft?and rightly so. This patent should never have been issued. That it was issued only underscores how little the Patent Office understands the process of creating software, or how similar the idea of interacting with remote content via the Web is to interacting with content stored locally (which the patent does not cover). In other words, Doyle and the UC didn’t patent the idea of embedding content, they just patented the process of using such embedded content when it’s delivered from a remote location. That was hardly a distinctive idea, even in 1993.

While such derivative ideas may be patentable, and (as shown by this lawsuit) legally enforceable, using the court system to enforce such patents amounts to legal blackmail, not patent protection. That’s especially true when the target is only one among many companies actively engaged in infringement. In other words, Eolas hasn’t yet objected to any other company infringing on their patent rights, only the one with the most cash.

Fortunately, despite the loss of goodwill from developers, and despite the court ruling forcing it to pay damages, Microsoft has resisted this intellectual extortion, and has implemented changes that circumvent the patent rather than taking the easy route and caving in to Eolas’ demands.

A Call to Vigilance
The fact that this patent was ever issued is ipso facto proof that developers should be extremely vigilant about preventing such patents in the future, perhaps via letter-writing campaigns, or by creating an organization dedicated to watching for overly broad patent applications that, if granted, would have an adverse effect on development. Lest you think that this call to vigilance is overblown you should peruse the other patents that Eolas may try to enforce in the future.

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