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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."
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!
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.