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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.
Perhaps Steve Ballmer ought to have checked with legal before mouthing off about Linux and intellectual property yesterday?
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.
"If you make people think they're thinking, they'll love you; But if you really make them think, they'll hate you." - DM
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.
Apparently, their questions pointed MS lawyers in the right direction, according to TFA. Also, "...in a double wammy decision, the court finds that polygamy is legal." (Futurama... sorry, I just had to.)
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?
Congratulations on first post, but your grammar is atrocious. Several of your sentences don't actually make sentences. And it's 'lose', not 'loose'.
;-)
So, do you speak Danish?
Come on, we can't blame foreigners too hard.
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.
it takes approximately $150,000 to make an international patent. And a legal service to defend your rights costs a lot more.
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We have to get used to this world anyway : more and more intelligent people have access to a good education. That means more and more people have great ideas. The corollary is that several people come up with the same great idea at approximately the same time. If you go further in the reasoning
Adam, Barbara and Conrad live in different parts of the world but come up with the Great Idea X that will change the way we use wireless networks. Adam lives in US and has a lot of cash. He patents the idea, barring Barbara and Conrad of a revenue they would be (in some economico-ethics theories) entitled to.
Please allow me to take an arrogant European tone
You americans always focus on the "who is making profit ?" aspect of the law. Is this the lil' guy ? is this the big corporation ? is it the state ? Is it the "good" person ? (That is, according to an unwritten law of ethics and morals)
The European stance on the patent system is "What system favors the exchange of ideas and the development of innovative industries ?". It is rooted in the belief that good ideas are too precious to be kept solely by an individual seeking profit.
Now the world has evolved so much that patents still allows someone to make profits from them, but does it still helps the propagation of ideas ? I am not sure of it...
The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
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.
As Justice Breyer implied, the issue of whether software is patentable isn't being raised by either side in this case, so the Court cannot rule on that question here. All they can do is interpret the law on the assumption that software is patentable. The ruling may very well suggest that the question is debatable though.
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.
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.
Ok, Windows... check, Office... check.
What about games? They don't make any money from games? Hardware?
There is a war going on for your mind.
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!"
tasks(723) drafts(105) languages(484) examples(29106)
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)?
I am TheRaven on Soylent News
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.
Isn't that what copyrights are for?
Random Musings
My dad tried to get a software patent through a major organization years ago, an organization that today holds countless thousands of software patents. The answer from the patent office was ominous: "there will NEVER be software patents".
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One of the most important difference of software compared other tangible products is, it doesn't cost to duplicate once a software product is developed. The other major difference is, it doesn't even cost to distribute even if to the whole world thanks to peer-to-peer (P2P) networks.
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A minor, student or single person can easily infringe one or many software patents by writing a small computer program. That is, you don't have to be a company to violate Software Patents.
Software Patents are the single most danger faced today by the students, end users, software developers, scientists, companies especially small ones, etc.
Therefore, Software Patents strongly discourage if not completely stop innovation and advancement of science and technology.
Software Patents allow few big companies to earn money with following two dangers to the public:
1. Software Patents holder has no obligation to give a license to others.
2. Even if Software Patents holder agrees to give a license to others, there is no obligation for them to give at price affordable for others.
By using either or both above points they can simply cutoff others from implementing a technology or advancement of a technology. Please note, the technique used is cutoff, not compete.
Today I'm sitting on a product that I developed by advancing the technology using innovative ideas, but I cannot release it to the world either free or at fee unless I violate one single patent owned by a large company.
I wrote to that company asking how much royalty do I have to pay, there is no reply from them. They want us to violate the law and sue us later. They do not want to compete with us, they simply want to cutoff us from competition.
By being a victim of Software Patents, my suggestion is software should be managed by Copyright laws, not by Patent laws. If somebody does not want to given me a license for a software product, I can still sit and develop a functionally equivalent one as if I'm writing a new book without violating law.
This is how major industries such as music, movie, book publishing operates.
Sagara W
Following links may give you a better understanding of this Software Patents issue:
1. Public Patent Foundation ( http://www.pubpat.org/ )
2. http://www.nosoftwarepatents.com/
3. Software Patents vs Parliamentary Democracy ( http://swpat.ffii.org/index.en.html )
4. Petition for a Software Patent Free Europe ( http://petition.eurolinux.org/index_html )
5. Software Patents Gone Bad ( http://www.eweek.com/article2/0,1895,1666755,00.a
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.
You are not alone. This is not normal. None of this is normal.
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.
Ruby Neural Evolution of Augmenting Topologies
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.
Warning: Apple/Nintendo fangirl. Likes her electronics cute & cuddly. May be rabid.
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
Money for nothing, pix for free
From the actual transcript (P.22, lines 6 to 10):
So, while IANAL and not familiar with things prior to these oral arguments, it is my suspicion that the issue of patentability was raised from the bench. Why wouldn't they raise that issue? If its not patentable, then the case is moot - they issue a ruling saying that software patents are invalid, and thus the case is dismissed; it's a waste of their time to go any farther. If they are patentable, then they rule on the case and back up the lower courts. However, as quoted above, the Supreme Court has not yet held that software patents are actually patentable, and this is highly reflected in the whole transcript where the Supreme Court keeps referring to software as a Blueprint and does not see how it is any different, despite AT&T and Microsoft and the Assistant to the Solicitor General say.
Personally, I think it is highly likely that (a) the Supreme Court will rule that software patents are not valid patents and that software cannot be patented (thus the case is moot), and (b) that it is possible - even likely - that AT&T and Microsoft are pushing this to the Supreme Court to get a verdict - either way - on patents. Of course, they'd be happier if software is patentable, but either way a verdict comes from the highest court of the land which can only be overturned by itself, or a change in the Constitution by Congress or the States.
That's my take on the transcript. Read it yourself and see what you think.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
[I thought]he was a native speaker that just couldn't be bothered to re-read what he'd wrote before he submitted. ... English is my native language, and I'm sick of seeing it butchered by people who don't care enough to use it properly.
Ouch!
...sometimes, in order to hurt someone very badly, you have to tell that person terrible lies. - PA
AT&T: OMG! Microsoft copied out patented software.
Justices: Microsoft, how do you respond to these allegations?
Microsoft: Whatever. It's not like software is even patentable anyway.
Justices: You raise an important issue. Why do you feel software shouldn't be patentable?
Microsoft: Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!
Justices: WTF? That's the best reason you can come up with not to uphold software patents? This court rules that software patents are legal and enforceable!
Microsoft: Oh, no! Please don't fling me in the briar patch!
Two points.
One, it was Justice Breyer who wrote a very eloquent dissenting (minority) opinion in the Eldred case. A sample from his dissent:
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.
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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.
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'."
You are reading a copy of my copyrighted post.
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.
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
All inventions are obvious in hindsight. The fact that people made fans with separate blinds for close to a hundred years is more than enough testament that this invention was non-obvious despite how simple it was. Just because an invention is simple to reproduce doesn't automatically mean it was obvious, or was not very innovative. You're making an unsubstantiated assertion in your chain of logic to reach your preconceived conclusion that patents are unnecessary.
AT&T wrote some drivers for Vista, then told MSFT that they could use the drivers, but only in the US. MSFT burned Vista (including the AT&T drivers) onto a golden "master disk", which it sent overseas for duplication. AT&T sued, claiming breach of contract. The Federal Circuit agreed with AT&T, and MSFT appealed.
MSFT's position is that the software on the golden master is not actually patentable until it's combined with the rest of the computer. "It has to be put together with a machine and made into a usable device." They're arguing that the disk is just a (non-patented) component, and that once the data is copied onto the hard drive, that the hard drive is a component of the final, patented device.
AT&T's position is that it's the data on the disk that's patentable, and that is what MSFT licensed. They basically give up on source code patentability (it's not at issue in this case), and go after the object code that's on the disk. Their argument is that the object code is the 'blueprints' for making the patented device. They will give up the 'software is patentable' argument if the Court will give them the patent on the methods that the software implements.
This post expresses my opinion, not that of my employer. And yes, IAAL.