In August a court found that Microsoft's Internet Explorer, the browser used by the bulk of internet users, infringed upon a web browser patent that allows web browsers to access interactive application programs. The court awarded damages of $520.6 million to patent holder the University of California and its licensee, the tiny Eolas Technologies.
Microsoft is appealing the verdict but has already revealed its proposed steps to alter Explorer, in case the appeal fails.
The W3C, an international standards-setting body for the internet, stepped into the dispute at the end of October when its director, Tim Berners-Lee, wrote to the USPTO asking that the patent – known as patent '906 - be declared invalid.
Berners-Lee, the man credited with inventing the World Wide Web, wrote:
"W3C urges the USPTO to initiate a re-examination of the '906 patent in order to prevent substantial economic and technical damage to the operation of [the] World Wide Web."
He added:
"The impact of this patent will be felt not only by those who are alleged to directly infringe, but all whose web pages and application rely on the stable, standards-based operation of browsers threatened by this patent. In many cases, those who will be forced to incur the cost of modifying Web pages or software applications do not even themselves infringe the patent - assuming it is even valid."
The validity of patents is a difficult and technical issue, but it is recognised that where the feature being patented is already in the public domain – known as "prior art" – then it cannot be patented.
According to the W3C, the sole difference between the web browser described in the '906 patent and typical browsers that the patent itself acknowledges as prior art, is that, with prior art browsers, the content is displayed in a new window, whereas, with the '906 browser, the content is displayed in the same window as the rest of the web page.
But the W3C claimed that this feature (i.e. displaying, or embedding, content generated by an external program in the same window as the rest of a web page) is a prior art, and has submitted evidence to the USPTO in an attempt to prove this.
According to CNET News.com, the USPTO has now instructed a re-examination of the patent.
The report quotes Stephen Kunin, the deputy commissioner for patent examination policy with the USPTO, as writing in his order for re-examination:
"A substantial outcry from a widespread segment of the affected industry has essentially raised a question of patentability with respect to the '906 patent claims."
He continued:
"This creates an extraordinary situation for which a director-ordered examination is an appropriate remedy."
None of the parties to the dispute have yet commented on the move.