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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.
Some people get the book thrown at them, this lawyer will probably get the chair...
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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.
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.
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.
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
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.
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)