W3C suckered by Microsoft?

[Dennis Sosnoski <dms@sosnoski.com>]

I'm sure most people on the list are aware of the ongoing reexamination 
of the Eolas patent and its preliminary rejection based on prior art 
(see http://www.eweek.com/article2/0,1759,1543843,00.asp, for instance). 
As it looks increasingly likely that this patent will end up overturned 
and Microsoft will save the $521M they currently owe Eolas I'm wondering 
if the W3C and the whole industry has really been played for suckers by 
the former company. Would Microsoft really have gone ahead with the 
supposed plan to change their browser if the patent were upheld? Based 
on the past history of the company I'd suspect they'd be more likely to 
negotiate with Eolas to get the price for continued use of the 
technology down to a reasonable level. Otherwise, they'd be in danger of 
throwing away their hard-(and illegally)-earned browser monopoly, since 
users might be tempted to switch to one of the open source alternatives 
that could presumably continue using embedding.

Even aside from the seriousness of the Microsoft threat to change 
technologies and break many web pages, the widespread industry support 
for Microsoft in this action has had the unfortunate side effect of 
helping to preserve the status quo in the U.S. Patent Office. Supporters 
of the bureaucracy will be able to point to Eolas as an example of how 
the existing system really *does* work - "Sure, a bad patent may slip 
through every now and then, but when it does it'll be corrected by the 
system." Meanwhile, Microsoft itself (along with many, many, other 
companies) is busily engaged in staking out patent territory with 
specious claims such as the "XML with scripts" patent 6,687,897 
discussed here last month, the "XML for word processing" patents, the 
".NET XML interface" patents, etc. Could these be overturned with enough 
money and effort? Very likely - but in the meantime, Microsoft looks 
likely to be using their portfolio of lame patents to threaten and 
harass the open source development that's the main threat to their 
continued monopoly profits. They've already made what look to be the 
first moves in this direction with their "patent licensing program", and 
once SCO folds it'll be the only defense left to them. Unfortunately, 
open source is especially vulnerable to this type of attack, since the 
developers involved are generally working as individuals without any 
legal resources to defend them against intimidation.

Personally, I don't think there's much doubt that Eolas is a band of 
scavengers who are working the patent system rather than innovating. If 
their case against Microsoft is upheld, though, it's likely to increase 
the pressure for change on the current system in a way that public 
complaints will never accomplish. Right now the patent system is 
operating to the benefit of the large players, who have the resources to 
both submit endless junk patents and argue examiners into the ground in 
order to get them approved, while knowing that they don't need to worry 
about other large companies doing the same because the competing 
portfolios provide a Mutually Assured Destruction (MAD) "deterrent" 
effect (at least in theory). Seeing a $521M payment from Microsoft will 
convince these large companies that change is needed.

  - Dennis