US Patent Office Upholds Absurd Patent Again – Prior Art in Comic Books?

[Note: updated on October 9, 2005]

OUT-LAW News, reports that “Patent Office upholds Eolas browser patent”. We do not mention the name of the company involved in that patent again. We ignore it. It does not deserve mention.

Read the 73-page! patent examiner’s statement here.

The saga of one of the biggest all-time scams in law and patent law is continuing. We had thought that the absurd “embedding” patent granted by the US Patent Office under the ridiculous patent law prevailing in the United States had been put on ice forever and now we read that the US Patent Office has unexpectedly upheld that patent in it its reexamination.

Thankfully, this ill-fated patent is not valid here in Europe and never will be:

[added Oct. 9] “The European Parliament … put the final nail in the coffin of the European Union’s controversial IT patenting proposal, voting overwhelmingly to reject the proposed directive.

The Parliament voted 648 to 14 with 18 abstentions to reject the directive, which would have become EU law if approved in its current form. The European Commission, which originated the proposal, said it respected the Parliament’s decision and said it would stand by its earlier promise not to put forward another proposal on the issue.

The directive was intended to harmonize EU member states’ laws on the patentability of IT-related inventions, but the real focus of interest was software. As originally drafted, the law would have put a relatively permissive system into place, which critics said would legitimize software and business-practice patents, bringing the EU into line with patent practices in the United States and Japan. Currently, patents on pure software and business processes are not enforceable in the EU, making it impossible for large companies to bring their patent arsenals into play in the region.

The system is seen as creating competitive advantages for the EU’s open-source economy, and for EU-based IT companies, which don’t have to worry about the overhead associated with patents on software. Open-source projects are considered especially vulnerable to software patents, and open-source leaders such as Linus Torvalds have spoken out against the current directive.”[end of addition]

What did the patent examiner find in his reexamination statement? It is a hopelessly rambling 73-page opinion which has great trouble getting to the point. The alleged “invention” to be patented is not clearly identified anywhere in those 73 pages. One must ask whether the patent examiner was completely overwhelmed by the material, as can be imputed from the constant unnecessary repetition found in that statement. One is given the impression that this patent turned on dozens of issues, whereas in fact, it only turns on one issue: prior art.

As we read from the 73-page tome, the Patent Office now in fact found that browser embedding was, as Microsoft and people such as Tim Berners-Lee had claimed, prior art. But the patent examiner has now split the hair in a new way, finding that this prior art was “static” browser embedding because [previously] “the user manually click[ed] on the ‘static snapshot” image to launch an external application” whereas the Eolas patent allegedly “invented” a new animal now called “dynamic” embedding which “[i]n contrast…do[es] not require user intervention to launch the executable application….”

In other words, Eolas has submitted a method (such methods should not be patentable in the first place) to the Patent Office – a method NEVER implemented by EOLAS itself in a product – which simply suggests that an executable application be run in the browser without clicking the mouse, i.e. by running the application as if the mouse had been clicked. And for this – for a child – foreseeable “invention”, millions or perhaps billions of dollars is to flow to this company and its investors. It is straight out of the comic books. Hmmm.

Typical for the absurdities found in the patent examiner’s statement is the observation that the “executable script” in the previous prior art Viola browser – even if it executed that script without a mouse click – was not prior art because: “[i]n such case, the browser and the ‘executable application’ merge into one program, and therefore cannot meet the requirement for a discrete ‘browser application’ and a discrete ‘executable application’ as claimed by instant ‘906 patent….”

So there you are folks, straight from the horse’s mouth. A script is not an executable application -it is, ah, er, “an executable part of the browser!”

But we find no less than 50,000 hits for the entry “executable script” in Google. Indeed many viruses are executable script. According to the patent examiner’s thoroughly confused statement, your standard executable virus is no longer an “outside” influence, but becomes part and parcel of your browser, which has “merged” with it. It’s a good thing that the anti-virus companies do not share this view because scripts as executable applications of code can in fact be removed.

The patent in question here dates to 1998 and the first internet virus surfaced in 1988 (the Morris Worm), 10 years before, with the first virus scanner appearing 1995. And the prior art for executable applications that run on computers without user intervention goes far back before that time:

“The term “virus” was first used in an academic publication by Fred Cohen in his 1984 paper Experiments with Computer Viruses, where he credits Len Adleman with coining it. However, a mid-1970s science fiction novel by David Gerrold, When H.A.R.L.I.E. was One, includes a description of a fictional computer program called “VIRUS” that worked just like a virus (and was countered by a program called “ANTIBODY”); and John Brunner’s 1975 novel The Shockwave Rider describes programs known as “tapeworms” which spread through a network for deleting data. The term “computer virus” with current usage also appears in the comic book “Uncanny X-Men” No. 158, published in 1982. And even earlier, in 1973, the phrase “computer virus” was used in the movie Westworld to describe a malicious program that emerged in the computer system of the theme park. Therefore, we may conclude that although Cohen’s use of “virus” may, perhaps, have been the first “academic” use, the term has been used earlier.”

So is the embedding of “dynamic” programs not requring a mouse click new? No.
If this case were not so “comic” it would be tragic.

Such are the so-called inventions that are being patented today by the US Patent Office – methods already anticipated 25 years before in comic books – and it is no wonder that the European Parliament recently rejected the patenting of this kind of absolute nonsense.

Update, October 9, 2005 – Other Blogs and Websites writing on this Topic

Unofficial Microsoft Blog


Two perspicacious comments at Copyfight are worth quoting:

One commenteer writes:

“In footnote 3 in the court of appeals it notes “An example of a DLL is spell check; a DLL is a component that can run only within another application.”

The district court upheld that an executable application refers to “any computer program code that is not the operating system or a utility, that is launched to enable an end user to interact directly with the data.”

The examiner now says that the claim (in 21 words here) “explicitly require the interactive processing to be enabled by an ‘executable application’ that is a separate application from the browser application”.

MSFT [Microsoft] could ask the judge to consider the narrowed interpretation. Those 21 words could mean the difference of US$500M or $0.00″.

Another comment at Copyright writes, quite correctly:

“Because of cases like this, a lot of tech inovation will leave the US in the next 10-50 years. US patent system was good for its time, but now it is becoming a bit archaic.”

We like the title of this comment posting at eWeek: “[company name omitted] no product, 1 person, 3 lawyers, 100 investors

Why work when you can potentially make millions by looking for things that others have thought of, that are already being used in principle, but that no one else has taken the time to write up for the hapless US Patent Office. It is the ultimate money scam.

Here as a great comment posting to the somewhat naive posting at eWeek by David Coursey which quite clearly describes what goes in the patenting of software and business methods and practices:

“Boy, you’ve really misunderstood the issue with software patents. You wrote: “The basic argument is the same that the open-source advocates always trot out: Patents lock up good ideas that should be freely available for use by anyone.” That so completely mischaracterizes the basic argument, that I don’t even know where to begin. The problem is that large companies take obvious ideas and prior art from out of the public domain and then patent them for themselves, thereby removing them from the public domain. They are able to do this because 1) only larger companies have sufficient resources to fund the legal fees involved with the patent process, and 2) our lax patent office lets them, by not performing proper checks for obviousness and prior art before granting patents. So the basic argument against patents actually is: “Patents allow large companies to steal obvious and non-original ideas that are currently freely available for use by anyone, and prevent anyone else (or at least anyone else who doesn’t have enough money to pay royalties) from ever using them again in the future”. So in their current form, where they are granted willy-nilly, they basically are an OBSTACLE to innovation, since any non-trivial piece of software that an innovator tries to write will inevitably wind up “infringing” on dozens, if not hundreds or thousands, of patented “innovations”, most of which are actually just generally accepted public domain techniques, like z-ordering in graphics, 1-click purchasing on websites, windowing systems, etc. The anti-patent argument is not about some hippie desire for “information to be free, man”. It’s about whether or not we will actually have a thriving, competitive, and innovative software industry in the future, or whether we’ll have a stifling oligarchy that IMPEDES competition and innovation. Personally I’m for innovation, competition, and the free market. Last I heard, those were somewhat important to a healthy capitalist market system.”


ConSource – The Constitutional Sources Project

Via the ZDNet Government Technology Blog (Phil Windley) we read:

“The recent focus on the Supreme Court and nominees may not seem like it has much to do with IT, but yesterday a friend pointed me to an interesting project that aims to create and maintain a ‘complete, reliable, easy-to-use and fully searchable online database of original source materials for the United States Constitution.’ The project, called ConSource is just getting started, but the goals are laudable.”

ConSource is The Constitutional Sources Project which is intended as an
“online repository of source materials for the United States Constitution”.

Make sure you play the Demo and have your speakers turned on.

Wonderfully done.

See There’s no quit in Berry for a unique “football view” of this project.

European Union (EU) Digital Libraries Initiative – i2010: DIGITAL LIBRARIES

We have posted considerably on library digitization (Europeans write digitisation) in connection with Author’s Guild v. Google. There is no question that library digitization is inevitable. But how will it be achieved?

Via News October 4, 2005 we read that the EU (European Union) is to follow Google’s lead on library digitization. They refer to the September 30, 2005 Communication from the Commission of the European Union, issued under the title COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS, COM(2005) 465 final, i2010: DIGITAL LIBRARIES, {SEC(2005) 1194}, {SEC(2005) 1195}. See also i2010. To see the role of the Commission in the EU, see

We have excerpted the September 30 Commission Communication to raise points important also to library digitization projects in the United States and elsewhere:

“In a letter of 28 April 2005 to the Presidency of Council and to the Commission, six Heads of State and Government advocated the creation of a virtual European library, aiming to make Europe’s cultural and scientific record accessible for all. The Commission has welcomed this plan and will contribute to it through the i2010 flagship initiative on digital libraries….

The quantity and diversity of material in Europe’s libraries and archives is impressive. The total number of books and bound periodicals (volumes) in European libraries (EU 25) was 2,533,893,879 in 2001….

The main reason for digitising this material is to make it available to users in an online environment. In some cases, however, digitisation is not primarily used to make content more accessible, but to guarantee its survival. This concerns in the first place audiovisual material, where analogue formats deteriorate with time, and precious material is lost….

At present, only a small part of European collections has been digitised. Digitisation activities exist in all the Member States, but efforts are fragmented and progress has been relatively slow. This was underlined by the announcement of the Google initiative to digitise 15 million books from four major libraries in the US and one in Europe. If realised as planned, the Google initiative by far exceeds the efforts at national level in any of the Member States. Also in other parts of the world digitisation efforts are being stepped up. In India and China there are, for example, ambitious digitisation agendas in place covering material in different languages.

A number of challenges impact the pace and efficiency of digitisation in Europe.

Financial challenges: Digitisation is labour-intensive and costly. It takes a considerable upfront investment, which in most cases goes beyond the means of the institutions holding the information….

Organisational challenges: A ‘digitise once, distribute widely’ strategy can benefit all the organisations involved. Duplication of effort – digitising the same works or collections several times – must be avoided. This can only be achieved by a sustained co-ordination effort at national and European level. The latter can also enhance European added-value, where the final result is more than the sum of the parts.

New ways of working are necessary to make digitisation happen. Partnerships with or sponsoring by the private sector could contribute, but this type of partnership is not yet well developed….

Technical challenges: A key technical challenge is the need to improve digitisation techniques in order to make digitisation – for audiovisual material as well as books – more cost-efficient and affordable. For digitising written texts improved automatic book and document feeding equipment is necessary, as well as higher performance optical and intelligent character recognition for languages other than English.

English-language optical character recognition (OCR) systems have been tested and run on most print fonts over the past 10 to 15 years, and have been enhanced by automatic or semi-automatic spelling correction algorithms. Similar systems for other languages are less advanced, which leads to higher costs and lower quality results.

Legal challenges: Digitisation presupposes making a copy, which can be problematic in view of intellectual property rights (IPR). Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society foresees an exception for specific acts of reproduction by publicly accessible libraries, educational establishments, museums or archives. The exception is however not mandatory and has led to different implementations in the Member States. The limited use that can be legally made of the resulting digital copies is a further disincentive for digitisation.

The traditional model of library services based on lending of the physical items they own is not easily translatable to the digital environment. Under current EU-law and international agreements, material resulting from digitisation can only be made available online if it is in the public domain or with the explicit consent of the rightholders. Therefore a European digital library will in principle be focused on public domain material.

For literature, this means that only works from the early 1900s or before are available without copyright restrictions, depending on the year of death of the author. But even if works are out of copyright, the situation is not always straightforward. There may be rights attached to the different editions of a work that is itself no longer protected by copyrights, for example rights to introductions, covers and typography.

An online library offering works beyond public domain material is not possible without a substantial change in the copyright legislation, or agreements, on a case by case basis, with the rightholders.

In this context, the clarification and transparency of the copyright status of works is very relevant. In some cases, the costs of establishing the IPR-status of a work will be higher than its digitisation and bringing it online. This is particularly true for so called ‘orphan works’ – films or books for which it is impossible or very difficult to determine who are the rightholders. These elements are highlighted in the staff working paper and the online consultation accompanying this document.

Questions of online accessibility are not limited to intellectual property rights. Putting material online does not mean it can be found easily by the user, still less that it can be searched and used. Appropriate services allowing the user to discover and work with the content are necessary. This implies structured and quality description of the content, both the collections and the items in them, and support for its use (e.g. annotation)….”

This Commission Communication is a must-read for anyone legally involved in the digitization of library holdings. See also the Online Consultation and the European Digital Libraries FAQ.