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

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 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.

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