The supreme Court debating the Patentability of Software

[P5-133XL]

I'm finding this to be totally ironic coming from M$, Since I note how much effort M$ has gone through trying to protect its own source code:

The US Supreme Court debates the patentabillity of software in Microsoft vs. AT&T. from www.betanews.com

A seemingly simple case regarding whether Microsoft had the right to replicate speech recognition software it had licensed -- or rather, thought it had licensed -- from AT&T, and then sell that software abroad as a component of Windows Vista, has exploded into what is now extremely likely to become a landmark case in US patent and copyright law.

The US Supreme Court today took up oral arguments in Microsoft's appeal of a judgment against it in AT&T v. Microsoft, which has now become Microsoft v. AT&T in view of the appeal."

AT&T contends that the duplication of that software outside of US boundaries, with the intent to sell the duplicates overseas, is a violation of that license. That view was upheld by the Federal Court of Appeals, and Microsoft is appealing that decision.

Microsoft attorney Theodore Olson, attacked AT&T's position with a novel argument that you might not expect to hear from Microsoft: In short, you can't patent source code or object code. For foreign replication to work, 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.

 

[Tannin]

" It's not software at that point, Olson says" ... wow. That's the most extraordinary legalistic twisting I've heard in quite a while.

So,You and I can go into business mass-producing Microsoft Office CDs and selling them for $50 each now, yes? Hey - we wouldn't be pirating software, cause they are only CDs, not software at all, according to Microsoft's legal team.

Bah. Lawyers.

Plenty of stuff that comes out the back end of a bull going down here, that's for sure.

 

[ddrueding]

Selling Office CDs would be illegal, because it is an executable at that point. But if I sold you a disk with a zipped version of the software, then we would be cool

 

[P5-133XL]

What I'm thinking is the irony of someone stealing the Windows source code and then posting it on the web: if it isn't patentable, or copyrightable, then would not the thieves be able to use the same arguement.

 

[Will Rickards]

The office executables are probably compressed in a cab file on the CD.

 

[Will Rickards]

Although I am a software patent holder, I think software patents should go away. While I believe you can make software that passes the novel idea test, I think they are being abused and copyright of the source code is probably enough protection. Certainly enough to still get royalties, no? I'm not a lawyer so I have no idea.

Anyway, this case appears to be about software patents not software copyright. Software copyrights probably prevent you from duplicating the office cd's.

I believe a key part of a patent requirement is that you need to have a working version. You can't patent just an idea. You have to patent an invention. MS is probably arguing neither source code nor object code is an invention. It is just the blue print for the invention. With source code this is an arguable point. With object code less so. With executables the argument falls apart.

I think MS should clearly lose the case.
I am afraid they've opened a can of worms though.
The supreme court may not address software patents in this decision.
Ars seems to think they'll do it in another case.

 

[P5-133XL]

The US Supreme Court has ruled in favor of Microsoft.

By my intrpretation, in the USA, Software patents are only valid in executable form and any abstraction (source code, object code, etc.) is not protected by patent. This brings up some very interesting potential issues with software patents.

The question arises, what is actually being patented, if no abstractions are allowed? The concrete binary instructions, seem to be all thats left. Effectively, that would seem to effectively invalidate almost all the value of software patents.

For example, if one has a patent for a particular form of sorting on a PC, is your patent valid on another machine, if it needs to be modified or recompiled to be useful? Well, the binarys are different, so do you still have a patent?

What about an upgrade? Is your software still patented if you modify the software to take advantage of a new instruction set, like SSE?

It seems to me that Microsoft has opened up a very large can of worms by persuing this and winning. The irony of it all, is so overwelming...

 

[RWIndiana]

I agree it seems like Microsoft was pursuing their own loss here.

 

[sechs]

So is piracy now okkay, as long as you do it outside the United States?

 

[P5-133XL]

No, there's still copyright protection.

Patent protection is not normally used for whole applications, but rather snippits of code. Think of a patent as a way of protecting an invention or in the case of software, a new (original) way of doing something like sorting or in Microsoft's case their API's.

What this means is that software developers are going to have to worry alot less about infinging on someone elses way of doing something.

 

[sechs]

You can't patent code, only methods. You copyright code.

The ruling seems to say that it's not software until you install it, so, I can make all of the copies of Windows that I want (in a foreign country), and, as long as I don't install it, I haven't stolen anything.