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

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

[Aladrin]

Sorry, said that backwards... If MS loses this, then software patents are confirmed. MS has paid big money to get their way before, so maybe this was all done on purpose. And they plan to lose badly on purpose.

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

[mungtor]

Why couldn't you patent the algorithm? The algorithm isn't the software, it's a genuinely something that you have created. A real invention. The implementation of that invention shouldn't be patentable tho, ie. you shouldn't be able to patent is the software that implements the algorithm.

If it's a compression algorithm, you can't patent "A digital means of conserving internal disk storage on home computers via file compression". That's a patent on a concept, not an invention. That's what should be under argument, and should ultimately be disallowed (like Amazon's One-Click, etc).

Of course, IANAL, nor do I play one on TV.

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

[TheRaven64]

Microsoft lost around a billion dollars to patent trolls last year. How much did they make by licensing software patents (or indirectly by looking as if they might)?

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

[the_womble]

I am not sure that a ruling against software patents would be all that bad for MS.

OK, they would lose a chance of damage open source and tax small companies in the industry.

Against that patents are not much use against major competitors who are likely to find something to counter-sue over - and in the long run the industry, like semi-conductors, is likely to end up with all the major players cross-licensing to each other. Patents also leave them exposed to claims themselves.

The only clear winners from software patents are patent trolls - and, for all their faults, MS is better than that.

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

[squiggleslash]

There have been successful patent suits against Microsoft, notably the recent ActiveX one, and they're always extremely disruptive.

If I were Ballmer, no matter how much I may dislike competition from Free Software and see patents as a potential battering ram against it (and they're of limited utility against FS anyway), I would see the sheer disruption and difficulty innovating that patents bring as overwhelmingly being the major issue.

If patents worked against Free Software, it would have died a long time ago. The distributed nature of the software's developers, the number of groups that maintain it in countries immune from software patent laws, the interoperability demanded by Microsoft's own customers that patents undermine, make it a poor weapon, usable mostly for FUD and little else.

What is Software?

[flajann]

The question of just what constitutes "software" can be seen as a subtext of the Supreme Court debate. Is "software" the source code? Is "software" the object code? It is "software" as just a stream of 1s and 0s, or does it only become "software" when that stream of 1s and 0s are executing on a computer?

As one who has a software patent to my name, this debate is intensely interesting to me. In my case, the patent is actually more an algorithm patent than a software patent, though the actual source code for the algorithm is listed in the patent itself. It represents one possible instantiation of the algorithm. And now I can see a debate immediately arising about the difference between "software" and "algorithm". :-)

Personally, I don't think software should be patentable despite the fact I have such a patent. It makes for a real mess and stymies the creative juices of developers who must worry over such things. Hell, if we all had to check every darn algorithm in our code to see if it might infringe a patent somewhere, we'd never get anything useful to market!

Personally, I hope the Supreme Court will lower the boom on all software patents, though I'd personally "loose" my patent (really owned by a Very Big Corporation). And actually, I am surprised to see law types have even a 10% clue about software, though I think their arguments rather specious and pointless. Software represent embodiments of ideas, and as far as I am concerned, ideas should be free. I think we all stand to benefit more from the free and open exploitation of ideas more so than a few holding monopolies and strangling the rest of the world.

Re:Whoa, go read the article!

[mixonic]

It affects the definition of software. MS is saying that the contents of an installation disc are not software until they are installed (or run maybe). The GPL says you cannot distribute GPLed *software* with non-GPLed software.

But the contents of your installation CD, if MS wins on those grounds, wouldn't be software. Thus the GPLs restriction on distribution of software is moot. A lot of stuff would be moot. There is a legal question in the court of what is patentable, but also of what "software" means.

IANAL, obviously.

-mix

Re:Dangerous ground...

[TemporalBeing]

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.

The Supreme Court only takes on a small number of cases a year - most cases are rejected. So they knew what they were getting into, and they likely decided that the issue needed to be decided. (Perhaps this was the best case of all that was submitted before them to decide this issue.) That's not to say that they have already made up their mind - but that they likely decided it is not time to rule on the issue one way or the other. So their "guidance" to Microsoft saying "we have not held software patentable" is like telling them "this is the issue we want to rule on, so focus your arguments around it".

It will be hard for any of them to sidestep the issue of software patents in this ruling as it is directly related. If they rule on anything else, they are essentially saying that software is patentable as that is the core of this case - if software patents are not valid then the case is moot and any other aspect of the case is a waste of their time; if they are, there is something else to rule on. So a decision either way will be made. Let's hope they make the right one.

I like how Microsoft defines software

[Experiment 626]

"An idea or a principle [such as] two plus two equals four can't be patented," [Microsoft attorney] Olson told the Justices. "It has to be put together with a machine and made into a usable device." ... [The] disk is shipped abroad to the replication service, containing the master of the Vista operating system that includes AT&T's drivers. It's not software at that point, Olson says, because no one can execute it. When it's installed onto a hard drive, then it becomes software, and it's the end customer who does that.

This seems like a dangerous position for Microsoft to take. If the BSA raids my house and finds thousands of CD-R's full of Vista and Office, can I just say "That's not pirated software. It's not software at all until somebody installs it on their computer. Microsoft says so themselves. If someone installed these discs on their computer, it would become software, possibly even illegal software, and you could get on their case, but until then this is just my perfectly legal collection of shiny five inch coasters."?

Re:I like how Microsoft defines software

[Abcd1234]

There's nothing dangerous about that position at all. The bits on those disks, whether you call the aggregate "software" or not, are still copyrighted.

Their suggestion is simply that, until you combine those bits with a computer, the software does not comprise a tangible invention, and thus can't be patented.

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

[Speare]

Two points.

One, it was Justice Breyer who wrote a very eloquent dissenting (minority) opinion in the Eldred case. A sample from his dissent:

[I]t is difficult to accept the conflicting rationale that the publishers advance, namely that extension, rather than limitation, of the grant will, by rewarding publishers with a form of monopoly, promote, rather than retard, the dissemination of works already in existence. Indeed, given these considerations, this rationale seems constitutionally perverse-unable, constitutionally speaking, to justify the blanket extension here at issue.

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.