MS vs AT&T Case Stirs Software Patent Debate 218
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."
One lawyer for sure out of job, more might follow (Score:4, Insightful)
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.
I write the songs (Score:1, Insightful)
I steal Everything
Re:One lawyer for sure out of job, more might foll (Score:1, Insightful)
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.
And Microsoft is surely not the only 'big patent holder' that wants to keep patents alive and well. Any major company whose business relies on having software that nobody else can reproduce exactly has a stake in this. It is to the benefit of -none- of them to lose patents. AT&T, Adobe, Apple, IBM, SCO, just to name a few.
No, this is possibly Microsoft's biggest mistake, but they haven't quite made the mistake yet. IANAL, but I believe they could still pull out of this before a decision is made. If they're lucky, AT&T will see the light and realize that losing this is a major, major loss for themselves, instead of the simple one that it appears to be at first.
Or maybe this is Microsoft's biggest evil yet... If they win this, software patents are confirmed by the US's highest court, and will be very hard to be rid of.
Re:One lawyer for sure out of job, more might foll (Score:4, Insightful)
Re:One lawyer for sure out of job, more might foll (Score:5, Insightful)
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.
Dangerous ground... (Score:5, Insightful)
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.
Let me help (Score:5, Insightful)
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.
Re:One lawyer for sure out of job, more might foll (Score:4, Insightful)
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.
Time for USA to fix it's patent system (Score:4, Insightful)
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.
Re:One lawyer for sure out of job, more might foll (Score:2, Insightful)
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!"
Re:One lawyer for sure out of job, more might foll (Score:3, Insightful)
Isn't that what copyrights are for?
Re:Let me help (Score:2, Insightful)
It's the algorithm (i.e. a series of steps) that's patentable, not the language in which the algorithm is expressed-- be it in Pascal, Lego blocks, or Esperanto.
Of course, most of us would argue that algorithms shouldn't be patentable either. But ultimately, any machine, even an entirely mechanical one, is just a physical embodiment of an algorithm.
From reading TFA, it doesn't appear that either the attorneys nor the justices really grasp that.
Re:One lawyer for sure out of job, more might foll (Score:4, Insightful)
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.
Re:One lawyer for sure out of job, more might foll (Score:4, Insightful)
Re:Let me help (Score:4, Insightful)
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.
Entrenched Monopoly (Score:4, Insightful)
Re:Let me help (Score:3, Insightful)
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 would have patented would be something along the lines of "an aparatus for performing calculations using fomrulae arranged in a grid on a screen allowing user input to alter the results of said formulae in real-time" (or some such).
The key word to note is "aparatus." If you came along and made another aparatus that did exactly the same thing using only springs and gears, you'd be infringing on the patent because a patent protects the idea itself, not its expression. The computer/software combination is merely the "preferred embodiment" of said patent.
Re:One lawyer for sure out of job, more might foll (Score:3, Insightful)
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.
Re:One lawyer for sure out of job, more might foll (Score:3, Insightful)