Change of venue for Eolas case could mean 'do-over' for Microsoft

Posted by Scott M. Fulton, III

Washington (DC) - What could, in some people's eyes, seem like a small victory for Microsoft in a case which it had already officially lost at least once, could effectively enable the company to re-argue its case all over again in a new US District Court, before a new judge. In the company's ongoing battle with Eolas Technologies - the patent-holding arm of the University of California, whose claim to having patented program functionality invoked through Web pages was upheld - the Appeals Court for the Federal Circuit on Monday granted Microsoft's request for the case to be remanded to a new judge.

While the Appeals Court effectively rejected Microsoft's otherwise rational, if ironic, defense that embedding functionality into a Web page was something that didn't have to be invented - and that Eolas merely anticipated an obvious derivative function of browsing, and patented it before someone else did - it cited an error the District Court had made in its judgment against Microsoft. Specifically, the District Court had failed to take into account some submissions of "prior art" - earlier attempts to build the same functionality. In this case, one example was reportedly submitted by none other than World-Wide Web creator Tim Berners-Lee. As a result, the Appeals Court remanded the case for reconsideration to the Circuit Court.

But wait, said Microsoft - the same Circuit Court that found for Eolas in the first place? Avoiding the appearance of bias argument, Microsoft instead cited rules of remanding between circuit and district courts, some of which probably had more dust on them than a copy of Windows/386. The case should automatically be remanded to a different district judge, according to the rules, said Microsoft. When you're right, you're right, the Appeals Court conceded. As a result, even with the Patent Office now upholding a patent it had rejected years earlier, Eolas could find itself back at square one.