Eolas and the Future of the Internet

We all know Al Gore invented the Internet, but who owns it and more importantly, who can collect royalties?  Last week, a U.S. District Court in Texas took the first step in eliminating one possible “owner” when a jury invalidated two software patents.  Although the grounds for invalidation in Eolas Technologies Inc. v. Adobe Systems, Inc. are somewhat elementary (public knowledge prior to invention), this case provides an interesting look into the history of Internet protocols and the ramifications of providing patent protection to the outputs of universal open standards.

A key factor to the Internet’s growth is that software developers worldwide used the same protocols or standards (TCP/IP, HTML, HTTP, etc.), thus enabling a “universal” language.  Whereas resource abundance typically results in reduced value, high user adoption rates had the paradoxical effect of increasing a protocol’s value.  The only catch was that developers demanded free standards.  On the face of it, this provides a conundrum to an inventor seeking patent protection, because they would typically rely on either excluding others from using the technology or charging licensing fees.  So, how would an inventor monetize a protocol without charging a penny?

One early strategy was to patent the outputs of these protocols, and then demand royalties.  For example, in the Eolas patents, the claimed invention recites “interactive web elements,” which could be read to include instances of a website responding to something a user does.  Common examples include streaming media content, auto-complete search terms, and image rotation.  If this patent were upheld, nearly every large Internet firm (including Google, Amazon, & Yahoo!) would have to pay royalties to Eolas.  Furthermore, some believe this would have a chilling effect on the future development of the Internet itself, wherein developers would deviate from the universal standards to avoid paying royalty costs.  This could undo much of the “universal” nature of the Internet and have the unintended consequence of reducing access to archived webpages.  On the other hand, the patent system exists to provide inventors with an incentive to invent, thus “promot[ing] the Progress of Science and the useful Arts.”  U.S. Const. art. I, § 8, cl. 8.  If an output from a standard protocol is truly novel and non-obvious, the inventor of that process should not be barred from seeking patent protection.

Although we can never be certain that this will not lead to the doomsday scenario of “killing the Internet,” the question remains: Are the outputs of open standards patentable and if so, where is the line in the sand?  We may have to wait for a definitive answer, either for an Eolas appeal or potentially in a future case.  Either way, this is sure to be a hotly contested arena.


For additional reading on the latest Eolas trial, Wired Magazine’s Joe Mullin wrote a series of articles, including:

For a more pro-Eolas view, a fellow blogger Patrick Anderson wrote a couple of posts, including:

A 2004 article in IEEE also provides a historical perspective, outlining Eolas v. Microsoft.


This post contributed by Daniel Parrish.

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