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'Outcry' from Internet community triggers rare patent review

By Jonathan Krim
The Washington Post

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Stephen Kunin, deputy commissioner for patent-examination policy, said that a "substantial outcry" from the Internet community created an "extraordinary situation" that triggered the rare review. Since 1981, a top official has ordered review of only 157 patents, roughly 2 percent of reviews that were requested. The office recently has been issuing nearly 200,000 patents annually.

The move is a victory for Microsoft, which in August was ordered to pay $520.6 million by a jury that found that the company's popular Internet-browsing software infringed on an existing patent. If the patent is not reversed, and Microsoft loses a court appeal, the company either will have to negotiate a licensing agreement with the patent holders or change its browser. The patent was awarded jointly to the University of California in San Francisco and Michael Doyle, a researcher at the school who is now chief executive of Eolas Technologies in Chicago.

Their patent, No. 5,838,906, covers technology that allows Web browsers to access interactive features on a Web page. These features include letting users put in data, view results and look at objects from different angles.

Online advertising and e-commerce rely on the technology, and because Microsoft's Internet Explorer browser is so dominant, its system had become the industry standard. As a result, a broad coalition of companies, technologists and Internet standards bodies — which on many occasions are opposed to the way Microsoft does business — have rallied to its defense.

In a sharply worded appeal for patent review after the verdict was announced, Timothy Berners-Lee, widely credited with helping to invent the Web, said the patent office had missed or ignored examples of similar technology that existed before the university applied for its patent in 1994.

Such "prior art" is a disqualification for the awarding of patents, which are supposed to be granted for original, useful and nonobvious invention.

Yesterday's decision does not necessarily relieve the pressure on Webmasters. Microsoft spokesman Lou Gellos said that although the company is "heartened" by the decision to review the patent, it is proceeding with Web-page changes, scheduled to take effect early next year. The company was fined for infringing the Eolas patent, and does not want to expose itself further until the case is resolved. Microsoft has produced and distributed code that avoids infringing on the Eolas patent. Providers of Web sites will need to add the code to their pages to ensure that Internet Explorer functions seamlessly before the browser is changed. If they don't, users will get a pop-up box each time they click on an interactive feature, asking if they want to continue.

The patent office's review, which could take a year, comes at a time of growing concern that the agency is granting too many patents of poor quality, especially in complex technology industries.

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