SFLC Argues On Same Side As Microsoft

MCRocker writes in with news that, while a few weeks old, didn't get a lot of traction before the holidays. The Software Freedom Law Center is one of the staunchest defenders of FOSS out there. The SFLC is arguing on the same side as Microsoft in a patent case before the Supreme Court. The case, "Microsoft vs. AT&T," turns on whether U.S. patents should apply to software that is copied and distributed overseas. Groklaw has more nitty-gritty details. In the Linux-Watch article, the SFLC's legal director, Daniel Ravicher, is quoted: "I expect many people will be surprised that the Software Freedom Law Center has filed a brief with the Supreme Court in support of Microsoft. In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents."

Comments

This is the most important piece of the brief.

[codepunk]

"The brief also argues that the Federal Circuit's decisions declaring software to be patentable subject matter conflict with Supreme Court precedent, and thus should be overruled."

They argue in the brief that software as a whole is not patentable and the patenting of software conflicts with earlier supreme court rulings.

Re:Well, colour me confused

[Aim Here]

The law is 35 USC 271, section f, which is designed to stop people making components of a patented invention and shipping them overseas in order to be assembled into something that would breach the patent, had the act occured in the US.

In this case, the software is apparently developed in the US and shipped overseas.

Yes, it's a disgusting overreach of US patent law into foreign jurisdictions. And yes, software patents are evil, and hopefully unlawful. Go Eben and Dan!

Re:Case is so important, Microsoft is irrelevant.

[Adhemar]

Well in this case it's sort of a "duh" position to take.

Still, the SFLC takes a very different position compared to Microsoft, although technically on the same side. Microsoft argues that U.S. patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents.

The SFLC argues that software patent are not valid at all under U.S. laws (specifically 35 U.S.C. 101) and prior Supreme Court decisions (Gottschalk v. Benson, 409 U.S. 63 (1972)). The Federal Circuit has repeatedly decided otherwise (In re Alappat, disregarding the Supreme Court's precedent as unclear); the Amicus Brief challenges this practice. (Go ahead and read the Brief, it's pretty readable even by non-lawyer standards.)

So although Microsoft and the SFLC are on the same side, I'm quite sure Microsoft would have preferred stating its case without this brief.

Earlier Poster got it right

[ajs318]

I think the earlier poster got it right in saying that it would really be truer to say that it's Microsoft who are fighting on the same side as the SFLC.

Nevertheless, there is such a thing as "National Sovereignty"; which basically means that a nation's laws stop at that nation's borders. If Person A does something which is legal in Nation X but not in Nation Y, and does it in Nation X, then Nation Y has no redress against Person A. The consumption of alcohol and extra-marital sex are both illegal in Saudi Arabia; however, any Saudi resident who drinks several litres of Guinness while visiting Ireland is not committing any crime for which they can be punished under Saudi law. That's because the Republic of Ireland is a sovereign nation. Only Irish Law applies to acts performed in the Republic of Ireland, whether or not they be done by Irish citizens. If the Arab in question then visited certain parts of the Continent, he might even be permitted to engage in lawful (subject to payment of the appropriate taxes) sex with a prostitute, and possibly even (again legally) to consume certain other substances less harmful than alcohol. Again, local (not Saudi) law would be applicable.

So it seems to me that if a US-owned company were to create software in some non-US territory which might violate US patents if it were imported into the USA but (by dint of the scope of patentability) would not violate any patents in the territory where it were created, the laws of the territory where the software were created would be applicable. And for the USA to seek to prevent a perfectly legal act within the borders of another sovereign nation could be construed as an Act of War.

Good idea, but unlikely to work

[aegl]

So this was a great idea by SFLC to remind the Supreme Court that the larger issue of whether software should be allowed to be patented at all, but it is a very long shot. Chief Justice Roberts is on record as saying that he prefers to keep rulings as narrow as possible:

"If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more."

See more of his philosophy at http://www.economist.com/PrinterFriendly.cfm?story _id=8413080

So, while it would be nice to see the Supreme Court invalidate software patents, I wouldn't hold my breath waiting for them to do so.