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MS vs AT&T Case Stirs Software Patent Debate

samzenpus posted more than 7 years ago | from the can-you-or-can't-you dept.

Patents 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."

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218 comments

One lawyer for sure out of job, more might follow (4, Insightful)

Reverse Gear (891207) | more than 7 years ago | (#18107520)

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.

Re:One lawyer for sure out of job, more might foll (1, Insightful)

Aladrin (926209) | more than 7 years ago | (#18107598)

Congratulations on first post, but your grammar is atrocious. Several of your sentences don't actually make sentences. And it's 'lose', not 'loose'.

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 (2, Interesting)

Aladrin (926209) | more than 7 years ago | (#18107620)

Sorry, said that backwards... If MS loses this, then software patents are confirmed. MS has paid big money to get their way before, so maybe this was all done on purpose. And they plan to lose badly on purpose.

Re:MS will lose badly, on purpose.. (1)

denis-The-menace (471988) | more than 7 years ago | (#18108212)

MS will lose badly, on purpose. If they don't, the Novell deal becomes hollow and without repercusions to Linux distros not signed up with MS.

Re:One lawyer for sure out of job, more might foll (3, Informative)

Adhemar (679794) | more than 7 years ago | (#18108436)

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:One lawyer for sure out of job, more might foll (2, Informative)

Anonymous Coward | more than 7 years ago | (#18107738)

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 (0)

Aladrin (926209) | more than 7 years ago | (#18108336)

No, and I've never tried. If I -were- going to try, I'd fully expect people to correct my mistakes, though.

He wrote well enough that I was fooled into thinking he was a native speaker that just couldn't be bothered to re-read what he'd wrote before he submitted. It's exactly the kind of thing that happens when you are typing furiously and trying to get first post. In the next post down, you'll see that he admitted he was typing too fast and prone to mistakes when he does.

English is my native language, and I'm sick of seeing it butchered by people who don't care enough to use it properly. This means that I occasionally sternly correct someone who is learning and trying hard, instead of the usual idiots who can't be bothered to care.

Re:One lawyer for sure out of job, more might foll (1)

Reverse Gear (891207) | more than 7 years ago | (#18107760)

Sorry for my spelling, English is not my native language and when I am typing fast errors flourish.

I have just read TFA actually it seems that AT&T did take the stance of agreeing to the MS lawyer that software patents should not be possible and would accept loosing this specific case if Microsoft agrees to this.
This whole patent thing is a bit of a cold war as it has been mentioned in some of the other discussions, seems that at least AT&T would rather spend their time and other resources developing real software instead of applying for software patents.

Re:One lawyer for sure out of job, more might foll (3, Insightful)

digitalhermit (113459) | more than 7 years ago | (#18107806)

I don't think you're giving the Microsoft lawyers enough credit. They're almost on par with IBM's lawyers...

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.

Re:One lawyer for sure out of job, more might foll (2, Insightful)

Short Circuit (52384) | more than 7 years ago | (#18107820)

It sounds like a supreme bluff for a software company. Neither company wants software patents to go away. With the Court of Appeals having decided in AT&T's favor, the only way Microsoft can get out of paying for violating their license is to get AT&T to back down.

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!"

Not all software companies want software patents (1)

Jamesday (794888) | more than 7 years ago | (#18108454)

"These are the core values of the company MySQL AB and its employees: ... We work against software patents" The "no software patents" logo at the bottom right of the pages on the web site is also deliberate.

Re:One lawyer for sure out of job, more might foll (5, Interesting)

TheRaven64 (641858) | more than 7 years ago | (#18107830)

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)?

Re:One lawyer for sure out of job, more might foll (2, Interesting)

the_womble (580291) | more than 7 years ago | (#18107888)

I am not sure that a ruling against software patents would be all that bad for MS.

OK, they would lose a chance of damage open source and tax small companies in the industry.

Against that patents are not much use against major competitors who are likely to find something to counter-sue over - and in the long run the industry, like semi-conductors, is likely to end up with all the major players cross-licensing to each other. Patents also leave them exposed to claims themselves.

The only clear winners from software patents are patent trolls - and, for all their faults, MS is better than that.

Re:One lawyer for sure out of job, more might foll (1)

jasen666 (88727) | more than 7 years ago | (#18108856)

With the frequency at which MS copies other companies products, you'd think they'd be delighted if software was not patentable.

Re:One lawyer for sure out of job, more might foll (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18107894)

Congratulations on first post, but your grammar is atrocious. Several of your sentences don't actually make sentences. And it's 'lose', not 'loose'.

This from someone who uses "majorly"? Give me a break.

Re:One lawyer for sure out of job, more might foll (2, Insightful)

Anml4ixoye (264762) | more than 7 years ago | (#18107924)

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.


Isn't that what copyrights are for?

Re:One lawyer for sure out of job, more might foll (0, Offtopic)

Zontar_Thing_From_Ve (949321) | more than 7 years ago | (#18108138)

Congratulations on first post, but your grammar is atrocious. Several of your sentences don't actually make sentences. And it's 'lose', not 'loose'.

In the hopes of trying to be helpful and follow up on this comment, I would like to add that it's "just won't stop" not "just want stop". Sadly, I've seen a lot worse than this. At first I thought it was just our American educational system failing to do its job, but I see truly horrible examples of grammar regularly on various forums from people in Canada, the UK, Australia (right now they seem particularly bad to me) and New Zealand, so it's not just us.

Re:One lawyer for sure out of job, more might foll (5, Informative)

TemporalBeing (803363) | more than 7 years ago | (#18108404)

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 (4, Insightful)

Cauchy (61097) | more than 7 years ago | (#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.

Re:One lawyer for sure out of job, more might foll (4, Insightful)

jimstapleton (999106) | more than 7 years ago | (#18107664)

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.

Re:One lawyer for sure out of job, more might foll (1)

Cauchy (61097) | more than 7 years ago | (#18107698)

So, one might argue that they legal system is what is broken, not the idea of software patents. Well, I guess both are broken, but the legal system is more broken. We need both, but we need them fixed.

Re:One lawyer for sure out of job, more might foll (0)

Anonymous Coward | more than 7 years ago | (#18107732)

What if what they want to bring to market is a clone of the Google search engine or some of the other Google products? If software patents are invalidated, then they can embrace and extend without fear.

Re:One lawyer for sure out of job, more might foll (1)

jimstapleton (999106) | more than 7 years ago | (#18107786)

and due to the broken legal system based on finance rather than right/wrong/legal/illegal (or if they want the willingness to pay royalties), MS can still do this right now if they'd like.

Re:One lawyer for sure out of job, more might foll (4, Interesting)

squiggleslash (241428) | more than 7 years ago | (#18108158)

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.

Re:One lawyer for sure out of job, more might foll (1)

jimstapleton (999106) | more than 7 years ago | (#18108314)

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.

Re:One lawyer for sure out of job, more might foll (5, Informative)

Yvanhoe (564877) | more than 7 years ago | (#18107768)

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...

Re:One lawyer for sure out of job, more might foll (1)

TheRaven64 (641858) | more than 7 years ago | (#18107868)

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.

Re:One lawyer for sure out of job, more might foll (1)

Yvanhoe (564877) | more than 7 years ago | (#18107950)

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 bottom line.

Your signature (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18107988)

(Offtopic, mod down if you like)

Your .sig is "The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool."

I was always under the impression that the original quote was "The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man. [quotationspage.com] (George Bernard Shaw, Man and Superman (1903)).

The GBS version rings truer as well, IMHO.

Re:Your signature (0, Offtopic)

Yvanhoe (564877) | more than 7 years ago | (#18108032)

Correct but it doesn't fit the 150 character limits Slashdot imposes, I had to make it shorter. I prefer GBS version though...

The most unreasonable of all (1)

DrSkwid (118965) | more than 7 years ago | (#18108122)

To whit :

"I'm a plan9 user, therefore I'm the most unreasonable of all creatures"

the "European stance" is rather inferior, sorry (0, Troll)

finlandia1869 (1001985) | more than 7 years ago | (#18107942)

We Americans focus on the profit issue because we live in a market economy. Here's the reasoning: 1. Innovation can lead to a product that people find useful 2. People will pay for useful products 3. Other people see this, and try to innovate in that same area 4. Competition forces more innovation, or at least lower prices 5. Society gets better stuff at a lower price, and innovators make money The "European stance" (not applicable in more market-oriented states like Ireland, I suspect) ignores this reality, thus chopping incentives for innovation off at the knees. Your stance will restrict innovation to large, established, conservative companies, and create a disincentive for the entry of small businesses (which often are founded around a single, innovative idea or product and are the primary drivers of employment and economic dynamism). What causes you to look down your nose at us is the fact that some established market participants have found ways to game the system thanks to the general uselessness of our federal government. But this happens everywhere. Consider that our market economy continues to innovate despite this, compare the results to your own, and marvel.

Re:the "European stance" is rather inferior, sorry (0)

digitig (1056110) | more than 7 years ago | (#18108318)

We don't live in a completely market economy, either in Europe or the USA (or anywhere else than I am aware of, for that matter). There is legislation restricting the operation of the market (anti-trust legislation, for example). Patent legislation was introduced for the specific purpose of spreading information about innovation (before it people had to keep how they did ideas secret if they wanted protect them).

The "European Model" works well for innovation; there's plenty of good innovation in Europe. The USA is arguably better at exploiting innovation because of a better venture capital environment -- I doubt it's due to a different patent environment.

Re:the "European stance" is rather inferior, sorry (1)

Jamesday (794888) | more than 7 years ago | (#18108586)

You got big and small mixed up there. The big companies want patents because they can stifle the small ones using the threat of patent litigation. The small ones don't want them because they get in the way of innovation and growing the business. Take MySQL, for example. It's merrily upsetting the database market and says this: "These are the core values of the company MySQL AB and its employees: ... We work against software patents" The "no software patents" logo at the bottom right of the pages on the web site is also deliberate.

Re:the "European stance" is rather inferior, sorry (1)

mcvos (645701) | more than 7 years ago | (#18108718)

The "European stance" (not applicable in more market-oriented states like Ireland, I suspect) ignores this reality, thus chopping incentives for innovation off at the knees.

I don't know much about Ireland, but is it really that much more market-oriented than the rest of Europe? The entire EU is one big open-market-worshipping cabal. Except for agriculture, for some stupid reason (but I believe the US is exactly the same there).

Your stance will restrict innovation to large, established, conservative companies, and create a disincentive for the entry of small businesses

On the contrary. It's software patents that restrict innovation to established companies, because they hold all the important patents and can afford the legal fees to defend them. Innovation in software is not possible without making use of existing patents, and if software patents are upheld, that means big companies can use their patents to stifle innovation by small companies. Fortunately most software patents aren't being wielded like this at the moment, but that time could come, if we're not careful. Ofcourse when it does, more people will realise how much software patents actually hurt innovation, and vote against such patents. So careless lawsuits for patent infringement could lead the big players to accidentally destroy the legal power of their patents, which just might be happening in this case. Would be cool if it did.

Re:One lawyer for sure out of job, more might foll (0)

Anonymous Coward | more than 7 years ago | (#18108054)

The usual arguments made by people in the U.S. as to why a particular patent/copyright rule should be in force is "What rewards people for developing ideas that benefit others?" At least that is the type of argument that usually wins.

Re:One lawyer for sure out of job, more might foll (3, Insightful)

porcupine8 (816071) | more than 7 years ago | (#18108206)

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.

Re:One lawyer for sure out of job, more might foll (3, Insightful)

richie2000 (159732) | more than 7 years ago | (#18108328)

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.

Re:One lawyer for sure out of job, more might foll (1)

Mikkeles (698461) | more than 7 years ago | (#18108600)

' Because having first-mover advantage is actually worth much more.'

Consider the Newton [wikipedia.org] .

(Although, patents wouldn't have helped.)

Re:One lawyer for sure out of job, more might foll (2, Interesting)

mungtor (306258) | more than 7 years ago | (#18107778)

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 under argument, and should ultimately be disallowed (like Amazon's One-Click, etc).

Of course, IANAL, nor do I play one on TV.

Re:One lawyer for sure out of job, more might foll (1)

i_am_socket (970911) | more than 7 years ago | (#18108136)

I always thought that you couldn't patent a core algorithm because that just boils down to a mathematical equation, and you can't patent mathematical equations. Patenting the implementation as a process sounds more like something that would be patentable.

Of course I could be entirely wrong...

Re:One lawyer for sure out of job, more might foll (1)

miyako (632510) | more than 7 years ago | (#18108438)

I'm not a lawyer, or a mathemetician, but I'm not sure that a ban on patening an equation would extend to an algorithm. An equation is a statement of truth, e.g. "x=y". An algorithm isn't a statement of truth, but rather a process.
I would say this is the same as saying you can't patent a physical law, but you can patent a device that is based off of that physical law.
For example, I can't patent gravity, but I could patent a machine that worked by dropping things.
Similarly, I shouldn't be able to patent "f(x)=y" - which is a statement of truth, but I should be able to patent the process of using the fact that f(x)=y and g(t)=n, etc. to do something- which is what an algorithm is.

Re:One lawyer for sure out of job, more might foll (1)

mgblst (80109) | more than 7 years ago | (#18108528)

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.

Re:One lawyer for sure out of job, more might foll (1)

jamestheprogrammer (932405) | more than 7 years ago | (#18107648)

The way I see it is this: Microsoft only has it's two cash cows. They've proven themselves unable to really improve on it at all. Therefore, they aren't really innovative, are they? Now, correct me if I'm wrong, but patents are intended to protect innovative tech, right? Okay, so, if MS can't be innovative, they shouldn't have any new patents. Anyway, not sure where I was going with that, but I did see something in the article that sounded suspicious to me, a quote from Ginsburg:

Ginsburg grabbed her question out of the air and thrust it toward Joseffer, who fumbled with it for a bit before attempting an answer. "One side is telling us it's the component that's supplied [to the foreign replicator], whether it's the master disk or the object code," she said. "And the other side says this is just like a blueprint, like a mold, like a template. Can a blueprint be patented? Can a mold be patented?"
Now, that sounds like it might do away with patents on the positioning of the input button, etc., but I can think of software that's not necessarily a "blueprint." Eh, that's just me being paranoid... DOWN WITH SOFTWARE PATENTS!!!

Re:One lawyer for sure out of job, more might foll (2, Informative)

Jaysyn (203771) | more than 7 years ago | (#18107816)

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

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

Re:One lawyer for sure out of job, more might foll (0)

Anonymous Coward | more than 7 years ago | (#18108050)

Recent figures (from th past several years) from their games division, which includes the xbox and windows games, have shown losses in most fiscal quarters. They make money in some places with games, but the overall division has been held back a bit by designing and introducing two consoles without apparently hitting the sales numbers to break even overall (yet). In the long term they might make a killing, recently, not so much.

If there's any justice they must make money from peripherals, their mice etc. are great. Probably nothing on the scale of Windows, though, since they have so many competitors.

Re:One lawyer for sure out of job, more might foll (-1, Troll)

Anonymous Coward | more than 7 years ago | (#18107836)

"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."

Just like much of your summary. You can't really depend on 2nd version of the story to give you suggestive details to draw on. I don't understand what makes you feel you have the right to make such judgements. You have a right too free speech, but I just think what you are doing is dumb and misinformed. Maybe you should apply more "what-if" to your own life where you at least can't affect others with dumb reasoning. If you are right it'll make your life better... right? Go ahead.

Re:One lawyer for sure out of job, more might foll (1)

DoofusOfDeath (636671) | more than 7 years ago | (#18108068)

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.

Somebody might want to tell Steve about this... (3, Funny)

Anonymous Coward | more than 7 years ago | (#18107564)

Perhaps Steve Ballmer ought to have checked with legal before mouthing off about Linux and intellectual property yesterday?

Re:Somebody might want to tell Steve about this... (4, Funny)

jimstapleton (999106) | more than 7 years ago | (#18107610)

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

Re:Somebody might want to tell Steve about this... (2, Informative)

Gonarat (177568) | more than 7 years ago | (#18108784)

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.


Whoa. (1)

Night Goat (18437) | more than 7 years ago | (#18107582)

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.

Re:Whoa. (1)

rajafarian (49150) | more than 7 years ago | (#18108678)

Dude, what is "wake and bake?"

Wow, your ID is lower than mine.

I write the songs (2, Insightful)

wooferhound (546132) | more than 7 years ago | (#18107592)

I write my software the same way that I write my songs . . .

I steal Everything

oblig: Natalie Portman (-1, Offtopic)

Jarn_Firebrand (845277) | more than 7 years ago | (#18107616)

Will Natalie Portman be a witness: naked, petrified, and covered in hot grits?

(Posted AC for obvious reasons...)

Re:oblig: Natalie Portman (0, Offtopic)

Anonymous Coward | more than 7 years ago | (#18107632)

did a real good job being an AC, didn't you...

Re:oblig: Natalie Portman (-1, Offtopic)

Aladrin (926209) | more than 7 years ago | (#18107720)

joke --------> ... Ah, nevermind. You probably wouldn't get that, either.

Support. (0, Troll)

kraemate (1065878) | more than 7 years ago | (#18107640)

Well, i know whom i'm supporting in this case. C,UNIX,C++ vs. Clippy and Vista seems like a no-brainer to me. Yes, like the next slashdotter, i know software patents are evil, etc . But that doesn't mean i can't root for the good guy, right?

Go Kennedy and Scalia! (2, Funny)

Veetox (931340) | more than 7 years ago | (#18107660)

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.)

lol whut (1)

Lenneth-chan (926055) | more than 7 years ago | (#18107678)

During oral arguments this morning, Microsoft attorney Theodore Olson, responding to a barrage of questions from Justices Anthony Kennedy and Antonin Scalia, 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.
From Microsoft? Joking aside, though, I'd be interested to see what the effect of this announcement might have on the way they handle the open-source movement/Linux/DRM/etc.

Re:lol whut (1)

GotenXiao (863190) | more than 7 years ago | (#18108130)

No, that seems in line with Microsoft's policies - they don't patent the source, they patent the idea.
If memory serves, they hold patents on progress bars, browsers and a few other things that are common interface widgets and programming concepts.

The only thing that should protect source code is copyright. It's far too easy to accidentally infringe upon software patents when programming.

Re:lol whut (1)

Salsaman (141471) | more than 7 years ago | (#18108216)

The general method is to patent a "computer configured in such a way as to run a particular program". Software by itself has never been patentable anywhere AFAIK, so TFA contains nothing new.

who sez the supremes got no sense of humor: (2, Funny)

airdrummer (547536) | more than 7 years ago | (#18108452)

"I hope we can continue calling it the golden disk," Justice Antonin Scalia said, when one justice blandly referred to it as the master disk. "It has a certain Scheherazade quality that really adds a lot of interest to this case." wash.post [washingtonpost.com]

Dangerous ground... (4, Insightful)

GreyPoopon (411036) | more than 7 years ago | (#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.

Re:Dangerous ground... (1)

xtracto (837672) | more than 7 years ago | (#18107932)

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 to any of the other copies.

 

Re:Dangerous ground... (1)

Trails (629752) | more than 7 years ago | (#18108472)

"You infringed my patent!" "Never! I recompiled!"

Re:Dangerous ground... (2, Interesting)

TemporalBeing (803363) | more than 7 years ago | (#18108606)

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.
The Supreme Court only takes on a small number of cases a year - most cases are rejected. So they knew what they were getting into, and they likely decided that the issue needed to be decided. (Perhaps this was the best case of all that was submitted before them to decide this issue.) That's not to say that they have already made up their mind - but that they likely decided it is not time to rule on the issue one way or the other. So their "guidance" to Microsoft saying "we have not held software patentable" is like telling them "this is the issue we want to rule on, so focus your arguments around it".

It will be hard for any of them to sidestep the issue of software patents in this ruling as it is directly related. If they rule on anything else, they are essentially saying that software is patentable as that is the core of this case - if software patents are not valid then the case is moot and any other aspect of the case is a waste of their time; if they are, there is something else to rule on. So a decision either way will be made. Let's hope they make the right one.

Let me help (4, Insightful)

Null Nihils (965047) | more than 7 years ago | (#18107742)

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.

Re:Let me help (1)

Matt Edd (884107) | more than 7 years ago | (#18107866)

But you can convert any piece of software into a circuit and you can probably say, "We created a circuit design that does X." and it gets patented. Then you can say that any software that does something similar to your circuit infringes on your patent.

Re:Let me help (2, Insightful)

Anonymous Coward | more than 7 years ago | (#18107944)

But you can convert any piece of software into a circuit and you can probably say, "We created a circuit design that does X." and it gets patented. Then you can say that any software that does something similar to your circuit infringes on your patent.
No, you can't. It has to do it exactly the way your circuit does. If you create a dog shaving machine, and I instead shave dogs with a straight razor, you can hardly claim that I'm infringing your patent.

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:Let me help (1)

DannyO152 (544940) | more than 7 years ago | (#18108232)

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 compile down to a sequence of instructions which are members of the small finite set of cpu instructions provided by the cpu designers, people like me ask where is the invention?

So, does this "No, no, we were patenting the device, not the software" loophole make sense? Does granting these types of patents advance society or (as I think) raise the costs for innovation and reward the big dogs in the manger who use patents to hinder progress or to leech off of other's successful implementation of the concept?

The questions from the Court about software patenting are interesting, because, as I understood it, this case was about a US patent being applied to a US company's overseas sale of something that would infringe if it was sold in the US. So, how does the nature of software patentability enter into the question? Unless it's their way to punt the question. Since there are circumstances where someone outside of the US can be held accountable to US laws (I know, go figure) they may want to find a way to settle this case without extending the reach of things like the "war" on drugs or the "war" on terror to civil litigation.

Re:Let me help (3, Insightful)

kripkenstein (913150) | more than 7 years ago | (#18108630)

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:Let me help (1)

caramuru (600877) | more than 7 years ago | (#18108660)

You are correct. Source code is not patentable, although it may be copyrighted. However, algorithms, techniques, etc. are patentable. Implementing a patented algorithm in any language infringes on the patent. The fact that Microsoft copied the AT&T code verbatim is irrelevant. If they had independantly implemented AT&T's algorithm in any language, they infringed. To my non-lawyer's eyes, the court can side with AT&T without depending on software patentability.

Having said that, the US Patent Office grants patents for too many trivial "inventions." Single Click Through is an example of one. Raising the bar a bit at the patent office would benefit most of us.

don't get your hopes up (3, Informative)

rlwhite (219604) | more than 7 years ago | (#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.

Re:don't get your hopes up (1)

organgtool (966989) | more than 7 years ago | (#18108036)

This is unfortunate because software should not be patented. Ideas can NOT be patented. However, implementations of ideas CAN be patented. Software is only an idea until it has become realized through implemented source code. Since the source code is the tool used for implementation, that is what needs to be protected by intellectual property laws. And since source code is covered under copyright law, we already have a way to protect intellectual property for software.

It is a shame that no one has directly challenged software patents yet. Maybe the FSF could raise money and take this issue to court.

Re:don't get your hopes up (3, Informative)

pgpckt (312866) | more than 7 years ago | (#18108060)

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.

Time for USA to fix it's patent system (4, Insightful)

Anonymous Coward | more than 7 years ago | (#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.

Re:Time for USA to fix its patent system (1)

Mathinker (909784) | more than 7 years ago | (#18108220)

> dreamt up by the BSA

I had always thought that RSA was the first software/algorithmic US patent granted. That would make MIT the Pandora who opened the software patent box, not the loathed BSA.

Or did you just mis-type?

Re:Time for USA to fix it's patent system (0)

Anonymous Coward | more than 7 years ago | (#18108504)

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.

Is there any proof that India and China do not recognize software patents?

Personal experience on software patents (3, Informative)

192939495969798999 (58312) | more than 7 years ago | (#18107986)

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? (5, Informative)

Anonymous Coward | more than 7 years ago | (#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] )

Re:Should software be patentable? (1)

DrSkwid (118965) | more than 7 years ago | (#18108194)

> 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

Re:Should software be patentable? (0)

Anonymous Coward | more than 7 years ago | (#18108520)

Way to miss the point entirely.

weasel words (0)

Anonymous Coward | more than 7 years ago | (#18108132)

" only supplied the golden disk to the replicator one time, and that disk did not really contain software in a usable form anyway..."

Re:weasel words (0)

Anonymous Coward | more than 7 years ago | (#18108624)

I'm going to come up with and publish a goedel numbering where the MS Office suite corresponds to the first 10 digits of pi. Then anyone who expands pi to at least 10 digits is illegally distributing MS Office.
"Usable form" matters.

This can't possibly think this is a good argument (1)

finlandia1869 (1001985) | more than 7 years ago | (#18108154)

A tortured argument on Olson's part. By that logic, it's ok for me to distribute child porn to people in other countries via CD. At that point, they're just inert electrons. Only when the recipient opens the file do the bits resolve themselves into an actual image. So the offender is not the person who sent the CD, because it the images weren't executable, but rather the person who received it and opened it for viewing. Staggering.

A bit OT, I'm stunned by the poor performance on the part of this Joseffer person. Asst SGs aren't what they used to be, I guess. You cannot win a case during oral arguments before the Court, but you can lose. Seven years ago, I watched the AG of North Carolina throw away states' rights to sell the data from their DMV databases through a truly incompetent argument. Here we go again.

Re:This can't possibly think this is a good argume (1)

flajann (658201) | more than 7 years ago | (#18108370)

  • A tortured argument on Olson's part. By that logic, it's ok for me to distribute child porn to people in other countries via CD. At that point, they're just inert electrons. Only when the recipient opens the file do the bits resolve themselves into an actual image. So the offender is not the person who sent the CD, because it the images weren't executable, but rather the person who received it and opened it for viewing. Staggering.
For that matter, it's not really "child porn" until it's actually rendered as an image on your viewing screen.

On the issue of child porn, I think the laws in this area are completely screwed up. Anyone can send a series of 1s and 0s to your computer from anywhere on the planet in the form of email, etc. If some unsolicited email happens to render as "child porn" on your computer, then you are now defined as "possessing child porn" and you could loose your computer, kids, have your reputation completely ruined, and all of this long before the court has a chance to determine your actual culpability in this instance. Trojanware could download lots of this crap to your computer and redistribute it without your knowledge -- and even rearrange the bits and bites to hide its tracks or make it look like you did it for real. Someone wants to frame you? They get this "frameware" on your computer and it emails the porn to the FBI from your computer along with personal information the "frameware" were able to glean from your personal files, after which it would remove all evidence of its existence. Anyone with half a brain could write a VB script to do this in just a few minutes, hour or two tops.

Am I paranoid? Pray that I am. But I've seen too much harm come to too many innocent people on the basis of screwy laws and crass ignorance in law enforcement.

Re:This can't possibly think this is a good argume (1)

Jaysyn (203771) | more than 7 years ago | (#18108440)

I love it when the "thinkofthechildern" argument is used to screw the "Man". You know, instead of screwing the rest of us like it usually does.

Whoa, go read the article! (1)

mixonic (186166) | more than 7 years ago | (#18108180)

Daaaaaamn Microsoft, you done and fucked up!

You should read the article. It's an amazing paraphrase of a scene that must have had Microsoft's attorneys shitting their pants

Justice Breyer realized. "I take it that we are operating under the assumption that software is patentable? We have never held that in this Court, have we?" he asked."
That was not where they were going. MS argued that:

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.
Now, I see three outcomes.

  A) Court says SW patents are unconstitutional. yeah right :-p.
  B) Court says SW patents are constitutional, MS wins and nothing changes too much.
  C) Court says a disc which is an installer is analogous to a "blueprint" and is not the same as a SW patent (and thus dodges the SW patent question). Everything explodes, GPL and non-GPL software living on the same installation CD (read: legal for nvidia drives to be distributed).

But really, read up. The killer quotes?

Justice Souter would not have the discussion divert into the patentability of photons. "Let's just take the master disk and forget the photon for the moment,"
and

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.
baazing! WTF is the difference?! Who knows!!!!

-mix

Re:Whoa, go read the article! (1)

Salsaman (141471) | more than 7 years ago | (#18108264)

Everything explodes, GPL and non-GPL software living on the same installation CD (read: legal for nvidia drives to be distributed).

Please explain how a ruling on software *patents* could possibley affect the GPL, which is based on *copyright* law.

Re:Whoa, go read the article! (2, Interesting)

mixonic (186166) | more than 7 years ago | (#18108312)

It affects the definition of software. MS is saying that the contents of an installation disc are not software until they are installed (or run maybe). The GPL says you cannot distribute GPLed *software* with non-GPLed software.

But the contents of your installation CD, if MS wins on those grounds, wouldn't be software. Thus the GPLs restriction on distribution of software is moot. A lot of stuff would be moot. There is a legal question in the court of what is patentable, but also of what "software" means.

IANAL, obviously.

-mix

What is Software? (2, Interesting)

flajann (658201) | more than 7 years ago | (#18108192)

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.

they are jus tplaying with words... (0)

Anonymous Coward | more than 7 years ago | (#18108208)

from the article:

"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.

Or for us mere developers: even if software is not patentable the lawyers will still have a way with the words to F*ck you.

usable form? (0, Troll)

AlgorithMan (937244) | more than 7 years ago | (#18108228)

that it wasn't really liable for infringing on AT&T's licensing rights because [...] that disk did not really contain software in a usable form anyway.
now I finally understand, why MS never had to pay big time to apple or xerox ;-)

Yow! (1)

headplant (1044408) | more than 7 years ago | (#18108394)

I've got ELECTRONS on my HARD DRIVE!

With DRM and Encryption - Patent Away Fools! (0)

Anonymous Coward | more than 7 years ago | (#18108448)

Hahaha this is so funny.

Hey, what shall we do today?
I know, let's patent Analog to Digital Converters.

What about Analog Devices (The company?)
Who cares.

What about the bucket brigade?
Who cares.

What about.. What about.. What about Electro-Harmonix?
Who cares.

What about AT&T?
Who cares.

Now we got a lawsuit. wtf?!
who cares, lets lobby to MANDATE DRM an add PGP encryption to the stream.

Of course, I didn't read this article.
I get a 0 for reading comprehension
1 for my response

As for speech recognition. . . . . I recognise "the speech."
The speech is pure bullshit, same ol, same ol.

Fucking Corporate bullshit.
Fuck Vista.

Amazing! (1)

gillbates (106458) | more than 7 years ago | (#18108566)

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 at that point... because no one can execute it. When it's installed onto a hard drive, then it becomes software..."

IOTW, there's nothing wrong with copying the Windows Vista disks, because it's not software until it is actually installed on someone's machine.

This is absolutely incredible. This is the same Microsoft which is suing my local computer shop for copyright infringement over copies of Windows.

I like how Microsoft defines software (1, Interesting)

Experiment 626 (698257) | more than 7 years ago | (#18108734)

"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 customer who does that.

This seems like a dangerous position for Microsoft to take. If the BSA raids my house and finds thousands of CD-R's full of Vista and Office, can I just say "That's not pirated software. It's not software at all until somebody installs it on their computer. Microsoft says so themselves. If someone installed these discs on their computer, it would become software, possibly even illegal software, and you could get on their case, but until then this is just my perfectly legal collection of shiny five inch coasters."?

hmmm (1)

someone1234 (830754) | more than 7 years ago | (#18108736)

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.
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