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."

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

[Anonymous Coward]

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.

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

[Yvanhoe]

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...

don't get your hopes up

[rlwhite]

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.

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

[Jaysyn]

Ok, Windows... check, Office... check.

What about games? They don't make any money from games? Hardware?

Personal experience on software patents

[192939495969798999]

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".

Should software be patentable?

[Anonymous Coward]

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] )

Re:don't get your hopes up

[pgpckt]

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.

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

[TemporalBeing]

Having said that, and assuming you meant what you almost said, I think you are wrong. I seriously doubt anyone at Microsoft was stupid enough to turn this into a software patents debate. It was almost assuredly the lawyer. How he screwed up that majorly, I cannot imagine.

I am not familiar with what was made before the oral arguments - though I read the oral arguments last night. Here's the transcript [supremecourtus.gov]. (Thanks to Groklaw for the link.) As Groklaw [groklaw.net] points out, the issue is taken up on both sides (AT&T - Waxman; Microsoft - Olson; Assistant to the Solicitor General (Joseffer) - aiding Microsoft). According to Groklaw, page 27, line 17 (Joseffer) says something to the effect that software is not patentable, and so does Waxman (page 29, line 10 and page 38, line 25).

From the actual transcript (P.22, lines 6 to 10):

JUSTICE BREYER:I take it that we are operating under the assumption that software is patentable? We have never held that in this Court, have we?
MR. JOSEFFER: No,...

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.

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

[Adhemar]

Sorry, said that backwards... If MS loses this, then software patents are confirmed.

Which is exactly why the The Software Freedom Law Center does not want Microsoft to loose, and entered an Amicus Curiæ Brief in favour of Microsoft [groklaw.net], as noted [slashdot.org] about 6 weeks ago on Slashdot.

Re:Somebody might want to tell Steve about this...

[Gonarat]

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 will profit them (in their opinion) the most. Software patents have not been that good for Microsoft, and I can see them feeling that they are better off without them. I'm sure that the lawyer in this case didn't decide to do this on his own -- the suits at Microsoft have changed direction. Ballmer should spend less time throwing chairs like Bobby Knight and spend more time seeing what is going on. Just my humble opinion.

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

[Solandri]

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.

Quick summary

[deblau]

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.