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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."
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 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.
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.
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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.
GreyPoopon
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Why is it I can write insightful comments but can't come up with a clever signature?
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.
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.