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MS vs AT&T Case Stirs Software Patent Debate 218

Posted by samzenpus
from the can-you-or-can't-you dept.
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."
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MS vs AT&T Case Stirs Software Patent Debate

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  • by Reverse Gear (891207) * on Thursday February 22, 2007 @08:53AM (#18107520) Homepage
    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.
    • by Cauchy (61097) on Thursday February 22, 2007 @09:06AM (#18107628)
      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.
      • by jimstapleton (999106) on Thursday February 22, 2007 @09:16AM (#18107664) Journal
        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.
        • by squiggleslash (241428) on Thursday February 22, 2007 @10:22AM (#18108158) Homepage Journal

          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.

          • honestly, I don't think free software is at the top of his worries, he's probably more worried about other pieces of corporate software.
          • by drinkypoo (153816)

            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 you were Ballmer you'd be jumping up and down like Donkey Kong, sweating, squirting, throwing chairs, and shouting "DEVELOPERS! DEVELOPERS! DEVELOPERS, DEVELOPERS, DEVELOPERS, DEVELOPERS, DEVELOPERS!

      • by Yvanhoe (564877) on Thursday February 22, 2007 @09:32AM (#18107768) Journal
        it takes approximately $150,000 to make an international patent. And a legal service to defend your rights costs a lot more.

        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...
        • it takes approximately $150,000 to make an international patent. And a legal service to defend your rights costs a lot more.

          I'm surprised by this number. It takes about £2,000 for a research organisation to get a patent in the UK (including a relevant fraction of the patent lawyer's retainer). Beyond this, getting it granted internationally is usually a matter of paying the filing fees and making a few minor tweaks.

          The ballpark for defending, however, is usually quoted at around £1,000,000. If you aren't willing and able to put up that much money to defend a patent, then it's not worth bothering to file it.

          • by Yvanhoe (564877)
            I am giving you a figure I have heard from the people who write patents in my (French) company. Apparently, a French patent would cost you around 2000 euros. But there are no international patent office, so you have to translate it in many legalese dialects and make it approved by several offices. So add the costs for UK, US, Middle East, Asia (probably includes China, Japan, Korea as separated entities) plus a few other countries where you could plan to do business, you get a pretty big number on the botto
        • by porcupine8 (816071) on Thursday February 22, 2007 @10:27AM (#18108206) Journal
          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.

          • 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.
            • by Mikkeles (698461)
              ' Because having first-mover advantage is actually worth much more.'

              Consider the Newton [wikipedia.org].

              (Although, patents wouldn't have helped.)

            • Apparently, all the makers of identical products (bottled water springs to mind, not to mention generical pharmaceuticals) realize this too.

              Those are two interesting and very, very different examples. Bottled water, on the one hand, required little to no real innovation (to the point where I seriously doubt it was ever patentable) and is probably pretty cheap to make. There is also very little brand loyalty (despite the brands' best efforts), which makes it much easier for new players to get in because no

            • by Solandri (704621) on Thursday February 22, 2007 @02:43PM (#18111566)

              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.
              Someone I know invented a fan with spring-loaded weighted blades which shut flat when the fan wasn't spinning, but tilted so they could drive air while spinning. It was a very simple, but innovative invention. Fans have been placed in windows and bathrooms for close to a hundred years using a separate set of blinds (manually or electrically operated) to block airflow when not in use. Think of a bathroom in winter where you'd like to vent steam out while it's in use, but not let cold air in while it's not in use. This invention immediately made all those old fans obsolete. Yet it was copied the very next day by large companies (in China) who already had the manufacturing lines in place to quickly produce the things, while the actual inventor had to struggle to put together a business and negotiate deals with manufacturing companies. In the end he didn't receive much if anything for his invention.

              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.

          • 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?

            Well, ask Nokia, Ericsson or Motorola in the mobile phone market.

            Or I could give you the answer right now: if you don't bring your product to market anyway, you're not gonna sell it at all.
            • Are you saying that none of those companies have any patents on any of the technology in their phones? And there is nothing at all that differentiates their phones from each other? Sure, to me all cel phones are alike and I just take whatever I get for free. But if I were the type to spend $200 on my phone, I'm sure I'd be paying attention to tiny details that set them apart from one another.

              Or I could give you the answer right now: if you don't bring your product to market anyway, you're not gonna sell i

      • Re: (Score:3, Interesting)

        by mungtor (306258)
        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 un
        • by mgblst (80109)
          Then the patent is useless. What is the point of patenting an algorithm, when someone can just go and implement it for free? No point.

          THe fact is that patents are a complicated issue. When everyone had an equal playing field, they were ok. Now, you have companies with bank accounts of Billions, versus ordinary people.
      • First, Algorithms are Math. Math should not be patentable.
        Second, I've independently invented several algorithms that are not patented or in public domain (as far as I can see- I work in a very specialized field). However, I've also independently invented algorithms that I later found other people invented long before me. I'm much more concered about random idiots suing me for accidentally violating patents I've never heard of than I am about people stealing my ideas. (Stealing my code is protected b
      • Then copyright it. As an author you have the right to do that. Then put license restrictions around it that say in effect "if you have a copy of my code / algorithm that I didn't sell you, you are in violation of my rights as an author and you'd better pay up or I can sue you." This is how it was done for nigh on 30 years prior to the USPTO coming to the erroneous conclusion that software is somehow the same as a patentable device.

        If you want better protection yet, build the algorithm into the appropriat
    • 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).

      Agreed. If he's smart, he'd get a patent, pronto, on chair throwing as a business method.
  • by Anonymous Coward on Thursday February 22, 2007 @08:58AM (#18107564)
    Perhaps Steve Ballmer ought to have checked with legal before mouthing off about Linux and intellectual property yesterday?
    • by jimstapleton (999106) on Thursday February 22, 2007 @09:03AM (#18107610) Journal
      Some people get the book thrown at them, this lawyer will probably get the chair...
    • Re: (Score:3, Informative)

      by Gonarat (177568) *

      Ballmer seems to be doing a good job of shooting off his mouth lately. First he says that Vista sales aren't where they should be due to Piracy. A few days later Bill Gates comes out and says that he is pleased with the sales of Vista. I tend to believe Bill on this one, yes upgrade sales of Vista are vastly down from when XP came out, but sales of new PCs are up -- numbers that make sense since Vista has been touted as running better on new hardware.

      Now this -- I can see Microsoft taking the path that w

      • by Chris Burke (6130)
        Ballmer should spend less time throwing chairs like Bobby Knight and spend more time seeing what is going on.

        Whoa. That sentence conjured up an image of what Ballmer and Knight combined would be like and it sent a shiver down my spine. Throw in some Karl Rove and you've got the villain of the next Final Fantasy.
      • Ballmer seems to be doing a good job of shooting off his mouth lately.

        Perhaps someone can arrange a quail-hunting trip for Balmer with Cheney...

  • I knew I should have "waked and baked" before reading Slashdot today. The Microsoft lawyer's getting all metaphysical on us. "Every product contains its own manifestation of its design." I don't envy the Supreme Court Justices here, it sounds like they're about to come up with some huge conclusions.
  • 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.)
  • by GreyPoopon (411036) <gpoopon@@@gmail...com> on Thursday February 22, 2007 @09:20AM (#18107690)
    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.

    • by xtracto (837672)
      I found the following snippet from the article quite amusing:

      AT&T is willing to concede that software isn't patentable, if the Court will conclude that the things that software does - the methods and procedures and instructions that a processor carries out once software is installed - are patentable.

      They are more or less trying to say that the software per se is not patentable but the things that the software /does/ once it is executed in the computer (arguably, one could put the same code in a Mac OSX and it would do nothing). I find it a bit difficult (IANAL) to understand but one of the things that I believe is a wrong assumption is that they are treating the "golden disk" as a mold, when in the case of software the golden disk is equal t

    • by Trails (629752)
      "You infringed my patent!" "Never! I recompiled!"
    • Re: (Score:3, Interesting)

      by TemporalBeing (803363)

      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 traditiona

  • Let me help (Score:5, Insightful)

    by Null Nihils (965047) on Thursday February 22, 2007 @09:28AM (#18107742) Journal
    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.
    • by DannyO152 (544940)

      So I was glancing at a summary of questions from the Court, and the point is that, by itself, software is not patentable -- the device using the software is patentable. So where a general device such as a 32 bit personal computer becomes a payroll server or a music player through the execution of a particular program, this device instantly infringes when a patent exists on a device that is a payroll server, etc. Unload the program and the device stops infringing. Since, gentle readers, we know all programs

    • Re:Let me help (Score:4, Insightful)

      by kripkenstein (913150) on Thursday February 22, 2007 @11:11AM (#18108630) Homepage

      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: (Score:3, Insightful)

        by pauljlucas (529435)

        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

  • by rlwhite (219604) <rogerwh@@@gmail...com> on Thursday February 22, 2007 @09:33AM (#18107782)
    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.
    • by pgpckt (312866) on Thursday February 22, 2007 @10:10AM (#18108060) Homepage Journal
      I wouldn't go so far as to say the Court can't rule on the question here. It's unusual, but the Supreme Court has been known in the past to base a case on an issue other than the one brought to appeal. In the past, this has been done when the Court wants to base its decision on broader grounds than were appealed. If the Court does rule on the question of patentability of software in this case, it would be consistent with occasions in the past when the Court has 'expanded' the question to make a broader policy statement.

    • by Chris Burke (6130)
      That's not true. The Supreme Court can rule on any matter of law relevent to the case being brought, and the patentability of software is certainly such an issue. They do not have to assume an interpretation of the law just because the parties bringing the suit have made that assumption. They are the ones who decide what the correct interpretation of the law is! If the parties bringing the suit and the lower courts operated under an interpretation that the Supreme Court feels is mistaken, they are both
    • "Judge rules that software cannot be patented" makes a good headline, but I think (IANAL) the actual issue is somewhat different.

      I am in the UK. If something is patented in the US but not in the UK, I can try making and selling the patented item. I will not be liable to be sued in the US provided I do not sell stuff in the US itself. However, if you can prove that I have sold or exported stuff to the US or made the stuff in the US, then you can bring a case against me. When you bring that case, you can al

  • by Anonymous Coward on Thursday February 22, 2007 @09:36AM (#18107808)
    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.

  • by 192939495969798999 (58312) <info@devinm o o re.com> on Thursday February 22, 2007 @10:02AM (#18107986) Homepage Journal
    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".
  • by Anonymous Coward on Thursday February 22, 2007 @10:08AM (#18108040)
    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.

    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/ [pubpat.org] )
    2. http://www.nosoftwarepatents.com/ [nosoftwarepatents.com]
    3. Software Patents vs Parliamentary Democracy ( http://swpat.ffii.org/index.en.html [ffii.org] )
    4. Petition for a Software Patent Free Europe ( http://petition.eurolinux.org/index_html [eurolinux.org] )
    5. Software Patents Gone Bad ( http://www.eweek.com/article2/0,1895,1666755,00.as p [eweek.com] )
    • by DrSkwid (118965)
      > 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.

      joules are consumed as electrons are moved; ergo cost > 0

  • What is Software? (Score:3, Interesting)

    by flajann (658201) <.flajann. .at. .linuxbloke.com.> on Thursday February 22, 2007 @10:26AM (#18108192) Homepage Journal
    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.

    • by Chris Burke (6130)
      And now I can see a debate immediately arising about the difference between "software" and "algorithm". :-)

      Maybe, but I would rather point out that an algorithm that isn't software is purely math, and math is not patentable.

      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
    • 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". :-)

      How long did it take you to develop the algorithm? What's the patent number?

      I'm just cur
  • FTA: a golden 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.

    If I understand Microsoft's argument correctly, then, all of those illicit copies of Windows Vista don't really infringe on Microsoft's copyright because "It's not software a

  • "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 custome

    • Re: (Score:3, Interesting)

      by Abcd1234 (188840)
      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.
      • The bits on those disks, whether you call the aggregate "software" or not, are still copyrighted.

        While copyright law (U.S. Code Title 17, Chapter 1) covers "computer programs" (i.e., software), it does not cover "bits on a disk". A bunch of bits, in and of themselves, are not "original works of authorship fixed in any tangible medium of expression" (section 102). They are just a very large number, which would be more akin to an "concept" or "idea" -- things that are explicitly not copyrightable (sectio

        • by Abcd1234 (188840)
          They are just a very large number, which would be more akin to an "concept" or "idea" -- things that are explicitly not copyrightable (section 102 b).

          Well, if you're going to try and take that stance, then this is true whether the software has been installed or not. The software is still "just a very large number" whether it's been installed or not, no? OTOH, the courts clearly don't agree with that view, having ruled that software is a copyrightable work.

          Hell, if you really want to get technical, a softw
    • Any argument MS makes here is in regard to Patent law, not copyright. Don't confuse the two - they are entirely distinct.
  • I didn't really accept M$'s golden disk defense anyway. It smelled very fishy. And somehow i couldn't believe that M$ argues against all software patents> If it really does and wins, it almost redeemed itself in my eyes.
  • I only supplied a copy of Windows to a replicator one time (to make 1,000,000 copies) and it wasn't in usable form anyway. After all, until you run the installer Windows on a disk does nothing, and even after that it's not usable (there are a lot of programs you need to install just to get basic OS functions that any other OS already has; this is quite apart from the argument that Windows is unusable in any form).

    They sure got bent out of shape over the theft of source in the past, both in terms of copyrig

  • Would striking down patents improve things or by forcing companies to use other ethods, i.e. copyrights, make things worse?

    Here is my reasoning. Patents can be dysfunctional and obnoxios. But eventually they expire.

    In contrast, thanks to the spineless slugs called the Supreme Court, copyrights can be extended into perpetuity.

    Is there something I am missing? If people suddenly switch to copyrights, would the cure be worse than the disease? I think it could be.
  • Supreme Court outcomes are very hard to figure.

    I honestly figure that Ballsmer will go appoplectic in his wind up with the chair, though.
  • Wow, Microsoft has really reached a new low here. They are provoking a patent dispute with AT&T and deliberately trying to lose the case, creating case law that might then be applied to open source.

    Microsoft's argument seems carefully crafted to remove the issue of commercial sales vs. open source distribution; that is, that when Microsoft violates AT&T's patent in software they produce and ship it's entirely different from when open source distributions aggregate third party software.

    You have to w
  • Good for the justices.

    Bluntly, the only fix to the patent system is to eliminate it. Why? It's fundamentally flawed and has no inherent value despite claims by the legal industry and their well-heeled clients. Patents will always be fundamentally flawed because 1. they are based on monopolies (which are (supposed to be) illegal), and 2. because they monopolize ideas (not just a specific expression of an idea --- as with copyright --- which is far less objectionable). Ideas should not be subject to monopoly
  • Quick summary (Score:3, Informative)

    by deblau (68023) <slashdot.25.flickboy@spamgourmet.com> on Thursday February 22, 2007 @05:08PM (#18113844) Journal
    Here's a quick summary of the background, before diving into the arguments: A patent may only be granted for a "new and useful process, machine, manufacture, or composition of matter" or an improvement on one of these. 35 USC 101 [cornell.edu]. The theory behind software patents is that it's not the ones and zeros that are patented, but the entire computer that contains the ones and zeros, because it produces a concrete, tangible result (the result of the computation). See State Street Bank & Trust v. Signature Financial Group [findlaw.com] and Diamond v. Diehr [findlaw.com]. Also, for the theory of infringement, read 35 USC 271(f). [cornell.edu]

    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 [wikipedia.org] 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.

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