MS vs AT&T Case Stirs Software Patent Debate

Stormwave0 writes "A Microsoft appeal against a decision for AT&T and their speech recognition patent has reached the Supreme Court. AT&T has argued that they did not license software using the patent for sales overseas. Microsoft, in the original case, argued "that it wasn't really liable for infringing on AT&T's licensing rights because it only supplied the golden disk to the replicator one time, and that disk did not really contain software in a usable form anyway." With that argument rejected, the case has moved in an unexpected direction. The court is now debating whether or not software is actually patentable."

Comments

One lawyer for sure out of job, more might follow

[Reverse Gear]

The stories showing how sick the software patent system in the US is just want stop it seems. It was about time that this also has reached the courts.

The person(s) within Microsoft that decided to make this appeal might very well not be too popular with Ballmer right now (that is if he wasn't involved in taking the decision himself). According to the article it actually was the Microsoft lawyer that brought the entire topic of software patents in general up, I somehow have the feeling he was acting on his own here and might have to look for another client soon.

This is one of the stories that I hope there will be an follow up on.
If the supreme court suddenly decided that software patents are not actually a possibility anymore then that really could turn the tide in the "patent wars". I would think Microsoft is going to put everything into this trial now, if they loose this one they only have their two money cows left and really no bright future ahead of them at all, even investors should be able to see that.

I wonder how the other big holders of patents will react to such a decision, I have a feeling the only one of the big patent holders that will want to avoid that the entire idea of software patents is given up is Microsoft, them an entire legion of lawyers who will have to find something else to make money on.

I write the songs

[wooferhound]

I write my software the same way that I write my songs . . .

I steal Everything

Re:One lawyer for sure out of job, more might foll

[Aladrin]

Congratulations on first post, but your grammar is atrocious. Several of your sentences don't actually make sentences. And it's 'lose', not 'loose'.

Having said that, and assuming you meant what you almost said, I think you are wrong. I seriously doubt anyone at Microsoft was stupid enough to turn this into a software patents debate. It was almost assuredly the lawyer. How he screwed up that majorly, I cannot imagine.

And Microsoft is surely not the only 'big patent holder' that wants to keep patents alive and well. Any major company whose business relies on having software that nobody else can reproduce exactly has a stake in this. It is to the benefit of -none- of them to lose patents. AT&T, Adobe, Apple, IBM, SCO, just to name a few.

No, this is possibly Microsoft's biggest mistake, but they haven't quite made the mistake yet. IANAL, but I believe they could still pull out of this before a decision is made. If they're lucky, AT&T will see the light and realize that losing this is a major, major loss for themselves, instead of the simple one that it appears to be at first.

Or maybe this is Microsoft's biggest evil yet... If they win this, software patents are confirmed by the US's highest court, and will be very hard to be rid of.

Re:One lawyer for sure out of job, more might foll

[Cauchy]

I would think that Microsoft would benefit greatly if software patents were overturned. They have a tremendous ability to bring software to market. It is the little guy who has to worry. Suppose you or I develop a really great algorithm. Right now, at least theoretically, we can protect our ideas and sell them to larger companies. However, suppose the ability to patent algorithms was removed. Now, I could take ideas from MS and MS could take ideas from me. Who is more likely to be able to out market who? Actually, given their big investments, I'm sure Google has the most to worry about of all.

Re:One lawyer for sure out of job, more might foll

[jimstapleton]

Except for one thing. If you bring a patent case against microsoft, you probably can't afford the legal costs to win, very few can.

The reverse is rarely true.

So, while in some ways it would be advantageous for Microsoft to be able to bring things to the market easier, they can afford to pay the royalties or legal fees, but they can also effectively keep others away from things that they have control over.

Dangerous ground...

[GreyPoopon]

Both sides are really treading on dangerous ground if they want to preserve software patents. It's clear from the justices that they are acutely aware of the debate over whether software should be patentable, and are also aware that they have never held a decision on that issue. I found this interesting.

Representing AT&T, Seth Waxman conceded that source code cannot be patentable; however, he argued, the manifestation of that source code as executable machine code or object code can be, and in this case, is. Justice Breyer was skeptical, however. Can't a machine be copied conceptually without its manifestation being copied?

If AT&T's counsel is really conceding that source code is not patentable, then shouldn't it be easy to get around a software patent by merely changing the machine or object code? For that matter, simply changing what compiler you use will handle the task for you.

Based on all the choice quotes from the justices, it's clear that there could be some serious fodder for dismissal of software patents to be found in the opinions written by the justices. You can almost bet that if this case doesn't decide whether software is patentable, the fallout will ultimately create other situations that bring the question squarely before the Supreme Court. The only hope for the big software companies now is in the fact that the illustrious members of our highest court have traditionally taken great pains to sidestep hot button topics like this by ruling on some less important issue. Nevertheless, you can bet there will be at least one justice who feels the need to write a separate opinion and address the matter of software patents, whether the majority opinion does so or not.

Let me help

[Null Nihils]

How about I save everyone some time.

The court is now debating whether or not software is actually patentable.

Answer: Software is not patentable.

See, wasn't that easy?

It's very simple. Software is, by definition, entirely conceptual. The only difference between a programming language construct and a human language construct is that the human language construct changes the electrical signals in the reader's brain, while programming language constructs can also change the electrical signals in a computer's hardware.

Language constructs cannot be (and when the law is interpreted properly, are not) patentable. They are covered by copyright.

Case closed.

Re:Let me help

[Anonymous Coward]

But you can convert any piece of software into a circuit and you can probably say, "We created a circuit design that does X." and it gets patented. Then you can say that any software that does something similar to your circuit infringes on your patent.

No, you can't. It has to do it exactly the way your circuit does. If you create a dog shaving machine, and I instead shave dogs with a straight razor, you can hardly claim that I'm infringing your patent.

It's the algorithm (i.e. a series of steps) that's patentable, not the language in which the algorithm is expressed-- be it in Pascal, Lego blocks, or Esperanto.

Of course, most of us would argue that algorithms shouldn't be patentable either. But ultimately, any machine, even an entirely mechanical one, is just a physical embodiment of an algorithm.

From reading TFA, it doesn't appear that either the attorneys nor the justices really grasp that.

Re:Let me help

[kripkenstein]

Answer: Software is not patentable.

Thing is, that is precisely what the three parties (MS, AT&T and the court) agree on. Software is not patentable. Actually TFA is a fascinating read, with all the details of the intricacies of the argument.

If I understood it right, no-one is claiming software is patentable. The judges explicitly state that fact, and the lawyers agree. What they are saying, is the far more delicate argument that certain things are patentable, and those things may have software as part of them. For example, you cannot patent a picture compression algorithm. But, you can patent a 'type of camera', which would use the algorithm. Using the algorithm by itself in a completely different type of application area might not be patent infringement; using the algorithm in a competing camera would. But it would be infringing on the patent consisting of a 'type of camera', not a software patent.

At least that is what I understand from TFA. Actually it made me wonder if the layperson understanding (including my own, until TFA) of 'software patents' is similar to the layperson understanding of neurosurgery, i.e., perhaps us non-lawyers simply have no idea whatsoever.

My conclusion: I should read more in-depth reports that include direct quotes from supreme court sessions, and less one-paragraph summaries on tech sites.

Re:Let me help

[pauljlucas]

What they are saying, is the far more delicate argument that certain things are patentable, and those things may have software as part of them.

To support you conclusion: this has always been the case for "software patents" which is a misnomer. The even more general version of your conclusion is: a "software patent" is that the thing a general-purpose computer becomes as a result of running given software.

For example, if back in the day, VisiCorp had patented a spreadsheet application, what they really would have patented would be something along the lines of "an aparatus for performing calculations using fomrulae arranged in a grid on a screen allowing user input to alter the results of said formulae in real-time" (or some such).

The key word to note is "aparatus." If you came along and made another aparatus that did exactly the same thing using only springs and gears, you'd be infringing on the patent because a patent protects the idea itself, not its expression. The computer/software combination is merely the "preferred embodiment" of said patent.

Re:One lawyer for sure out of job, more might foll

[digitalhermit]

I don't think you're giving the Microsoft lawyers enough credit. They're almost on par with IBM's lawyers...

Microsoft spends a whole lot of money on patents -- either suing others or being sued. At some point they must realize that it's a sinking ship; they have not innovated much in the past few years and have been largely confined to incremental changes to their interfaces. Imagine how it is for them: They think of something that they want to add to Windows or Office. Alas, someone else invented (and patented) it years ago. All this detracts from their core business, namely, ummmm... Well, whatever their core business is, lawsuits (snarky comments aside) are not one of them.

Time for USA to fix it's patent system

[Anonymous Coward]

On the one hand you can patent software in the USA, and the patents are granted easily. So you MUST patent EVERYTHING, because if you don't someone else will. Trade secret protection is not an option, even though it's very effective at protecting the algorithms inside software.

Yet on the other hand, software patents are not permitted in competitor markets like Europe or India or China. In those markets they CAN use trade secrets, they can also read the USA patents and copy the invention.

By allowing software patents, they took away the best method of protection available for software, trade secrets, and replaced it with forced disclosure to foreign competitors.

It would be a good idea to correct the faulty idea that software can be patented, and it looks like the supremes might do that here. It was only one of these dumb ideas dreamt up by the BSA and slotted into a vaguely worded trade agreement (TRIPS) that caused the mistake to happen anyway. Well that's why pencils have erasers.

Re:One lawyer for sure out of job, more might foll

[Short Circuit]

It sounds like a supreme bluff for a software company. Neither company wants software patents to go away. With the Court of Appeals having decided in AT&T's favor, the only way Microsoft can get out of paying for violating their license is to get AT&T to back down.

AT&T will back down, long before this reaches a final decision. Not only does AT&T want software patents to stay in place, but so does every software company out there. And each one is going to be knocking on AT&T's door, threatening to cease business and license agreements if AT&T follows through.

To quote Snowman, "Welcome to the world's biggest game of chicken, boys!"

Re:One lawyer for sure out of job, more might foll

[Anml4ixoye]

Any major company whose business relies on having software that nobody else can reproduce exactly has a stake in this. It is to the benefit of -none- of them to lose patents. AT&T, Adobe, Apple, IBM, SCO, just to name a few.

Isn't that what copyrights are for?

Re:One lawyer for sure out of job, more might foll

[porcupine8]

It is rooted in the belief that good ideas are too precious to be kept solely by an individual seeking profit.

But without any patents, what would be the motivation for that individual to share their idea at all? Bringing an idea to fruition as an invention takes a lot of work. If you know that the day after your product goes to market, a dozen other identical ones will be on the shelf next to it, why bother? Sure, some people are altruistic or just doing it for the fun of it - but many people have a zillion other things to deal with that will take priority if their invention won't see much of a profit for them.

I'm not arguing for software patents necessarily, and I'll fully admit that there are a ton of problems with the US's patent system. But remember that often the best way to get that innovation out where people can benefit from it is to ensure that the innovator will make a profit.

Re:One lawyer for sure out of job, more might foll

[richie2000]

If you know that the day after your product goes to market, a dozen other identical ones will be on the shelf next to it, why bother? Because having first-mover advantage is actually worth much more. Besides, if your innovation is such that it can be copied by a dozen competitiors the very next day, it probably wasn't much of an innovation in the first place. Oh, and I'd rather have one-thirteenth of a market than no market at all. Apparently, all the makers of identical products (bottled water springs to mind, not to mention generical pharmaceuticals) realize this too.

Entrenched Monopoly

[paladinwannabe2]

So two huge, bloated monopolies are fighting, and rather than vote for the one who might be in the right, you're voting for the one that used to dump some extra mountains of cash into research? I hope you never serve Jury duty. "Well, he did kill his wife, but he donated several hundred dollars to the EFF, while his wife voted for Bush. Let's give a verdict of 'Not Guilty'."

Re:One lawyer for sure out of job, more might foll

[TemporalBeing]

Second point, it is not at all unusual for the members of the bench to raise questions that would seem to the layman as a personal predisposition. Breyer appears to "play his hand" by asking whether software patents are even viable, but in fact, he may personally quite agree with the concept or at least have no interest in visiting that legal question with his final opinion. You can't really listen to a Supreme Court Justice's probing questions and distinguish what is direct and what is merely socratic. They are shaking the trees to see what unexpected concepts fall out, so as to craft a more finessed ruling that has the least amount of unintended consequences.

True. Per my reading, that is a sense I got from the entire transcript. Again, IANAL (or a ParaLegal) so I could very well be wrong; but I also find it highly likely that that is why they took this case in particular. As I said earlier, if they rule in favor of AT&T, then software patents are essentially upheld at the Supreme Court level and are thus valid. If they rule in favor of Microsoft, sure there is a lot of different rulings they could make, but it still comes down to one of two things: (1) They say software patents are invalid, the issue is moot, case dismissed, or (2) software patents are valid, but here's why we ruled for Microsoft.

No matter what ruling they make, they will end up making a ruling on software patents - it's the heart of the case. If software patents are not valid, then the case is moot and its a waste of their time. So, more likely than not, they are using this case to say something about software patents.

Again, IANAL so take what I say with a grain of salt, but this is what I got of out it.

Re:One lawyer for sure out of job, more might foll

[nasch]

But, all the physical inventions that we use and would agree should be patentable are combinations of wheels, axles, inclined planes, etc, etc, which are generally unpatentable.

Because of prior art. If nobody had ever made a wheel before, and it was considered non-obvious (since it doesn't occur in nature I don't see why not) then I think you could patent it. There's nothing special about wheels (levers, etc) that makes them not patentable except that they've already been in use for a very very long time.

So, where does the line get drawn? I believe that it should be drawn at the "construct", and short of the implementation. I can patent an engine design, but shouldn't be able to patent uses of it, for example.

I'm not sure what you're saying here. You can patent your design, but you can't patent what I'm allowed to do with your design? If I can do anything I want with the design (such as implement an engine using it) then what does your patent mean? Seems like nothing. I would say uses of the design is exactly what a patent is designed to control. For software that means that if software patents are permitted, then I can't get around your patent by writing it in a different language, because you've patented something above the level of an implementation. Perhaps that is your point? If you support software patents that's a good thing. I think software patents have a net harm to society, regardless of any philosophical debates about ownership of ideas, so they should be thrown out for that reason alone.