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back to article Eolas falls at first hurdle in bid to tax browser apps

A jury in Texas has ruled against Eolas Technologies in its patent battle to lay claim to the concept of in-browser applications and most plug-ins. Internet luminaries such as Sir Tim Berners-Lee were flown into the small Texas city to testify in Eolas’ case against Adobe – the first time the father of the World Wide Web has …

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Holmes

Intellectual Property Claims - Weapons of Mass Destruction

"Google was one of many companies that could have faced massive penalties if the case had been successful"

This is like saying that my neighbor would be one of many people facing massive sunburn if a nuke went off in center town.

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Familiarity with the technology may have helped?

My belief being that patent trolls succeed because they can rely on not just a prima facie case - a patent on a process and evidence of another company using that process - but also the implicit presumption that a jury's eyes will glaze over upon any in-depth discussion of technology, juries being representative of society in that regard.

In this case the patent appears to be so clearly obvious to anyone who has used a web browser, probably including everyone in the jury, that they were likely receptive to the dates and facts of the defence case. I'll bet very little time needed to be spent on explaining exactly what the patent meant and showing examples in practice and discussing the relevant commonality and so on.

So my feeling is that patent trolling becomes harder the better understood a field is to the public, and my hope is that the technology world will therefore drift away from this sort of ridiculously broad patent being considered much of a risk at all.

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Pint

That was my thought as well.

When the technology involved is highly technical like that XML parsing thingy* i4i claimed Microsoft was infringing on, I suspect jurors are inclined to think "Well the patent office said it was good, and I'm sure they understand it better than I do...". But this is not only simpler to explain, it's something most of the jurors probably use every day. So instead they think "OMG, they're trying to take away my source of porn/free games/cat videos!"

*Yeah I don't remember the details either.

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Trollface

I wonder if a juror who has found in favour of a patent in the past has ever gone home to discover that some vital bit of tech they rely on no longer works the way it used to. I wonder if that happened, would they be smart enough to connect the dots; whether they complain to the company in particular or whether they just carry on in ignorant bliss accepting that's one of the funny quirks of life.

In some ways, I wish Eolas had won and all browser makers/developers immediately removed the infringing features. I would like to be a fly on the wall if that happened and the jurors involved suddenly discovered they could no longer get on Facebook or YouTube "OMG what the f**k have we done?!"

Something like this would have forced patents into the mainstream for debate. I think most people have no idea what takes place behind closed doors and in high courts that affects their everyday use of technology and why some things are so expensive. A stage light needs to be shone on this dirty little art of trolling.

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Pint

Where goes from here?

Nowhere. "...no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." - US Constitution, 7th Amendment.

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You forget...

"...than according to the rules of the common law..."

You forget that common law dating back to before the founding of the United States grants the loser in a case the RIGHT to appeal their case before the next higher court. In this case, the case would go on to a three-judge panel of the Fifth Circuit United States Court of Appeals. They could then choose not to hear it, sustain the verdict, overturn it, or order a retrial potentially with altered rules of engagement.

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Just the facts ...

The significant thing in OP is that the FACTS cannot be reexamined.

The decision can be appealed on the basis of law such as that the judge misapplied the statutes, inappropriately excluded evidence, etc. But the jury's decision as regards to the facts can not be appealed - it is final.

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Doesn't matter.

Those very things you mentioned can make the facts irrelevant. Now, it's not likely that the verdict would be flat overturned in such a case since it would have to be on a gross misapplication of the law, but if a sufficient technicality was found that renders the interpretation of the law or the court procedure invalid, they CAN declare a mistrial and order a new trial, and the plaintiffs would likely take jury selection much more seriously this time around.

I merely state that it is possible, and it is within the plaintiff's right to try for this. But I will agree with you on the respect that they have to find the technicality first, or it's likely the court of appeals and on up would simply refuse to hear the case, on the grounds that it's none of their business, provided the lower court conducted their case properly.

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"All involved may just chose to swallow their legal costs and walk away"

Screw that, the patent troll should have to pay everyones legal costs, that may make patent trolls think twice before going to court.

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Pint

Woohooo!

Everyone have a beer on me!

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Unhappy

Lots of companies settled with Eolas before this trial. They are therefore rich.

They therefore lost this battle, but it mattered little. Patent trolling works.

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Alert

Not if Adobe et al all go after Eolas for their legal fees....I'm sure that they'd be happy to relieve Eolas of their ill-gotten gains.

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jai
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solution

we all know the patent system over there is broken, and it makes it so easy for patent troll firms to thrive. there needs to be a change. patent trolling needs to be recognised as a criminal activity, it is, afterall, practically a form of extortion. so that way, if a company feels they are being trolled, they could counter-sue with the charge of patent trolling ("seeking to pervert the course of commerce and innovation" or whatever the legalese term would be). And such a charge should carry the death penalty. This would both cause companies think twice before attempting to troll, and also reduce the number of active patent trolls out there too.

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What's really needed

Is better regulation of the right to sue (I think I've seen it called standing on here?) Companies with patents should have a more limited time to either licence them out or make something based on it themselves. If they can't show that they are working to bring something useful to market either on their own or in partnership with manufacturers then they do not need or deserve legal protection of their idea. Patents should also not be sellable unless someone can come up with a legal framework that bars patent trolls from suing without putting off genuine companies from buying the right to make a product.

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Feeling silly

"Firms like Oracle and Texas Instruments chose to settle with Eolas, rather than risk a big payout in court, and must be feeling a tad silly right now"

I doubt it - large organisations are very risk averse. They obviously did the maths and decided that the cost of the pay-off was better value for them than the risk associated with paying it. It's especially likely when they factor in their legal costs and the likelihood of getting them back even if they did win.

It's similar to taking out insurance and not having to claim on it. Yeah, you now know you would have been better off not taking out insurance as nothing bad happened, but you didn't know that then, and you didn't fancy the risk of not having insurance if something bad did happen.

That's the one reason we don't have time machines yet - the insurance companies...

PS - sensible result. +1 for the jury.

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I'd like it rather more if they did feel foolish.

Part of the reason the trolls pursue these cases is how many companies fold so quickly. Granted an even larger reason is that so many patents are issued with so little competent review. And competent review in turn is dwarfed by the insane extent patents have been broadened by the politicians. But ya gotta start somewhere.

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And yet again a patent that has stood for over a dozen years is found to be invalid by a court. Exactly what do they do at the patent office? I'm guessing they just take your money and wield a big rubber stamp that says GRANTED.

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That's what you get...

...with a Patent & Trademark Office that's seriously short-staffed and under budget. In the grand scheme of the United States Executive Branch, the PTO isn't exactly high on the list of priorities.

So, how do you go about improving the system without any more money or staff to actually do the work? And don't say dissolve the office because there are still the legitimate physical design patents that have to be protected (or people won't invent for fear of copycats), as well as the trademarks and service marks that help companies identify themselves and prevent imitators.

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