Eolas v. Microsoft (Continuing Saga).
The Supreme Court has denied Microsoft’s petition for a writ of certiorari. And, the case will be wholly returned to the district court to resolve a number of pending issues. At first glance, Microsoft seems to be running out of legal arguments: M$ lost $500 million at the district court; substantially lost on appeal, lost in its bid to get the Supreme Court to hear the case, and lost in its bid for the Patent Office to reject the patent on reexamination.
On a closer look, however, the reexamination may actually give Microsoft breathing room again at the district court. The Examiner’s reasons for allowance make clear that the Eolas claims require an “‘executable application’ that is a separate application from the browser application.” (emphasis in original). Of course, it would be difficult for Eolas to argue that Microsoft’s accused ActiveX controls, applets and plug-ins are separate applications rather than components that are called by an application.
It will be interesting to see whether Microsoft can capitalize on this implicit limitation that has been created by the PTO.
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