Published Oct 7, 2003
Eolas is a company started by a former Cal prof, in partnership with UC Berkeley, to market and defend this professor’s invention of a method in which browsers can display embedded content, such as Flash and Real Media. Eolas felt that its technology was being used by Microsoft in Internet Explorer for Windows, and sued, winning its initial rounds. In response, Microsoft has modified how IE works to get around the patents Eolas holds. The result could be harmful to companies with Web sites and the companies who design Web sites.
The problem is this: Eolas’ patents cover the seamless integration of embedded content in browsers. To get around these patents, Microsoft has made the previously seamless seamful. For instance, Flash animations that once just played will now only play if the user clicks an alert. This seems trivial, but it could dramatically change how many people view sites using embedded content. After all, will your Aunt Edna click “yes” on a strange new dialog box saying that a strange Web page wants to do something she can’t understand? Quite possibly not.
Two things about this particularly bother me. One is that Microsoft’s workaround is so trivial. Doesn’t that suggest that suggest that the patent, itself, concerns something trivial? Many technology-related patents have, lately, been given to basic concepts rather than substantive breakthroughs. This hurts our patent system, hurts innovation and hurts companies (Eolas’s patents may cost Microsoft over $500 million).
The other is, as Zeldman points out, is that the work-around to prevent a Web site from causing the appearance of scary pop-up alerts is to recode the site. Microsft’s changes, which will be deployed in an upcoming version of IE, the most-used browser on the planet, will require that many sites be recoded. Who pays? The clients, who now need to shell out for changes to a site they may have thought was finished years ago? The developer, who must call client after client and spend hours making changes to each client’s page for free? Either way, this patent costs businesses money.
If proof was needed that our current technology patent system was broken, I this is it. Eolas shouldn’t lose their patent — after all, they earned it by developing with a new idea — but they should have been required to come up, in the first place, with a substantive and clearly-bounded patent that other companies would clearly have had to license to provide certain kinds of functionality in their applications. That, in fact, would have spurred innovation.