Update (December 4, 2003):

As pubic reaction to the Eolas decision continues to become ever more negative, the USPTO (US Patent and Trademark Office) has agreed to review the Eolas patent in light of the various prior-art arguments and examples provided. To say that the webdeveloper community is in a near panic over the volume of work necessary to fix pages would be an actual understatement. Virtually all webdeveloper BBS and any company offering an ActiveX control (Internet Explorer plugin) have extensive online help - much of it conflicting and disagreeing. The constants are that everybody needs to be prepared and that various JS solutions are the most likely only way to work around the Eolas patent.

As noted previously, the November 13, 2003 announcement most likely comes too late to stop the cascade of code reworking already in progress on most sites. In addition, the USPTO hasn't said how long they'll take to make their decision. It's not unusual for this type of review to take 9 - 18 months, far too long to really help.

Update (November 1, 2003):

In an unprecedented public move, the W3.ORG (the 'Net standards body) and Tim Berners-Lee (the founder of the 'Net) have petitioned the US Patent And Trademark Office to reconsider the basic Eolas patent (#5,838,906). W3.ORG has, as a rule, been neutral in any previous similar situations, though it can be argued that the current Eolas crisis is unlike any previous situation.

The arguments presented basically fall into two groups, the prior art  type and the damage to public trust and public good  type. Each is persuasively documented in an expansive style. Prior Art is a legal concept usually only encountered in patents and trademarks. At its core, it means that a concept, idea, machine or method was already in use when a patent was awarded. Essentially the patent was issued under false grounds (stolen or non original concept, idea, machine or method) and did not represent anything new. Multiple samples are detailed in the filing.

Under the damage to public trust and public good, the samples and situations noted are incredibly moving. Not only will many sites become nonfunctional, but much of the early history of the 'Net may be lost as these older pages generate no income, hence no monies to upgrade the code is possible. In addition, the general chaos already created, combined with the chaos to shortly be unleashed may irreparably damage the 'Net, particularly as regards disabled surfers.

The filing asks for a timely review and answer. Unfortunately, even 90 days may be the quickest possible, and this will not be soon enough as Microsoft will release its new Internet Explorer 6 browser in early January 2004. Once the new IE is released, it will arguably be too late to undue the damage. Additionally, it may actually take several years for the filing and the review of the Eolas patent to take place and a ruling about the validity of the Eolas patent to be issued. This would obviously be too late. The damage to the 'Net from the Eolas patent is clearly inestimable.

Original story (October 22, 2003):

Your basic surfing experiences will likely change soon. Over the next several months, virtually all webpages that use any form of ActiveX or plugins must be redone to satisfy the rulings that have come out of the Eolas lawsuit. How browsers interact and display active content and  how webpages are coded will both be affected. Some pages, even entire sites will stop functioning correctly. Some browsers will be withdrawn or rewritten.

At the heart of the Eolas lawsuit and rulings is the basic patent (US Patent #5,838,906) which suggest a simple method of embedding software directly in HTML code so that interactive elements would be part of a page, as a picture is part of a page. Webdevelopers do this via ActiveX and plugins. In the August 2003 ruling, the jury found that most browsers (Internet Explorer specifically) and the EMBED, OBJECT and APPLET tags infringed on Eolas' patent and used its core idea. Microsoft was ordered to pay $521 Million to Eolas. Eolas is also seeking an extra $110 Million in interest charges. Other browsers and webdevelopers have not been enjoined, but with Internet Explorer's 96% market share, Microsoft represents virtually all the infringers.

While Microsoft has already appealed the rulings, it has also announced serious changes in the next release of Internet Explorer. Most active content tags that are inlined (part of the same HTML as the page) will trigger one or more query prompt panels ("continue loading active content?", "display media via ActiveX?", and similar). Each of these prompts must be answered ("yes", "no") to continue loading the page. This will produce a very jarring surfing experience compared to how pages load active content now. That Flash movie, Crescendo midi, MediaPlayer video and many others is just a part of the page. Unless pages are recoded, the page will not load all the way until the prompts are answered. New releases of IE (Internet Explorer) for early 2004 will exhibit this behavior as their automatic default. This behaviour may NOT be altered from within the browser, it is builtin. It may be altered with carefully recoded pages. Unfortunately, SSI (Server Side Includes), IFrames (Inline Frames), PHP includes, and similar would still infringe the patent - they still embed the active content directly in an HTML-like environment. The exception is carefully crafted javascripts making calls to external JS via document.write statements. The active content is never embedded directly in HTML, it's sent directly to the browser, though it does look to surfers as if it's been embedded.

Many companies have stepped up to bat immediately to help reassure 'Net surfers as well as developers about this crisis. Sun, Microsoft, Real, Macromedia, Apple, Mozilla and others are all dedicating pages to this most serious problem and how they plan to implement as close to a seamless transition as possible. As little is truly known about what constitutes a legitimate workaround and what constitutes a new infringement, it is possible that any change or recode predicted at this time will fail legal challenges from Eolas. Developers and software companies are both concerned with the same thing - any workaround must be seamless, must be backward compatible (works in new and old browsers) and must not continue to infringe the Eolas patent. Paying Eolas licensing fees is considered a bad idea by all concerned. Recode the pages, recompile the software, and forget the Eolas patent even exists. Microsoft is the sole company Eolas has sued for money.

The W3.ORG has taken the unusual step of founding a new standing committee to address legal issues and patents as they specifically effect 'Net standards. W3.ORG assumes that Eolas may file against it as it did accept and codify the current EMBED, OBJECT, and APPLET tags that are infringing on Eolas patent. W3.ORG is also taking the unprecedented position of considering making changes to many current standards. HTML 4.01, HTML 4.02, CSS 1, CSS 2, XHTML 1, XHTML 1.1, XHTML 2, XML 1, XML 2, and X3D may all be slightly rewritten to allow an expansion of the IMG tag, downgrading active content to mere graphic types. Whether this would infringe the Eolas patent isn't known - though the IMG tag is believed to be outside the patent. Should W3.ORG make this change, this will be the first time they have ever altered an accepted standard in full implementation by the 'Net community. The most serious drawback to resolving things this way is it does not address the original infringement nor does it directly address backward compatibility. Would older browsers from before the change misbehave and malfunction when exposed to the new tag? Refuse to see the content? Would browser companies issue special patches for all current versions (not just the newest of the new) so they could correctly display this new IMG tag? A solution needs to be found VERY  rapidly, Eolas is asking for interest monies.

The bulk of the workaround code work is homing in on a header javascript, a body javascript making calls to an external JS file that uses the document.write tags. This method has the wonderful ability to be 100% backward compatible as active content was once displayed using javascript tags. Older and newer browsers (even the 2004 version of IE) can see and use this type of coding. While it is extremely intense as regards webdeveloper time (each EMBED, OBJECT, or APPLET tag creates at least three larger tags), it should be a permanent solution. It also has the attribute of being intuitive, so once developers get used to making the change and creating the external JS files, new active content can be added rapidly. It's also possible to carefully code batch-style external JS that would handle a specific active content type every time it was needed, only the javascripting would be unique. Microsoft (MediaPlayer, Internet Explorer), Apple (QuickTime), Macromedia (Flash and ShockWave), and Sun (Java) are offering free online tutorials in these workarounds and have free downloads of batch-style JS files.

The next three months and the early part of 2004 will most likely prove very interesting as this crisis resolves. Software makers and developers have all realized that the most important thing at this time is to make sure that surfers realize there may be a problem shortly, but that everyone is working resolutely to resolve things. It is possible that some sites or pages may act oddly. If you notice it and it doesn't get fixed, drop the site's developer or service address a note. Many sites and developers are taking a "wait and see" approach, so early adopters of the new 2004 versions of browsers may find sites not ready for them. A message to the site should prove all that's needed to get them to fix things. As regards sites that are unable to fix things, a limited number of large sites, some medium sites, and thousands of small and personal sites may be unable to fix things 'cause they may not be able to afford the recode bill. Just click through the prompts and things should load OK.