RSSMicrosoft Wins in Supreme Court; AT&T Ruling Overturned
By Scott M. Fulton, III | Published April 30, 2007, 12:51 PM
In a stunning 7-1 decision with extremely broad implications in the field of patents and patentability, the US Supreme Court has overturned a Federal Circuit ruling that was in favor of AT&T, and has apparently affirmed Microsoft's arguments that software coupled with the device on which the software is installed cannot be considered patentable.
Depending on the language of the ruling - which has not yet been released - some of the bedrock principles upon which countless US software patents have already been issued, may now come under question. And in one of the great ironies of our time and industry, Microsoft may have just won the single most important victory to date on behalf of open source advocates.
“Abstract software code is an idea without physical embodiment,” reads the syllabus of this morning’s historic decision in AT&T v. Microsoft from the US Supreme Court, “and as such, it does not match [the] categorization “components” amenable to “combination.”
Windows abstracted from a tangible copy no doubt is information -– a detailed set of instructions –- and thus might be compared to a blueprint (or anything else containing design information). A blueprint may contain precise instructions for the construction and combination of the components of a patented device, but it is not itself a combinable component.”
The implications of that paragraph on the software industry will be historic, and the open source community may have reason to celebrate what could be a world-changing victory. The patent under dispute in this case was a long-held AT&T patent relating to speech synthesis software. Specifically, the patent explained a device on which that software was installed.
Although Microsoft had obtained a license to AT&T’s speech software and was using it in Windows XP and Vista, AT&T claimed that license did not extend to Microsoft the right to export Windows – and thus export the software with it – to other manufacturers who would then install the software on their own computers, and then sell those computers and pocket the proceeds.
An early provision of the US Patent Act, called Section 271(f), created an exception to an exception governing where US patent law does not apply. While it cannot cover exports to other countries – that’s for the other countries to decide – it does cover situations where technologies learned over here could be reassembled “over there.”
The whole point of the creation of 271(f) was to disallow companies, especially foreign ones, from learning how to produce machines American-style over here, then build assembly lines back in their home countries to produce knock-offs.
AT&T’s argument boiled down to the notion that patented software could essentially be decomposed by a supplier (Microsoft) and recomposed by a foreign manufacturer abroad (for instance, Acer). In such a situation, AT&T argued, Microsoft would be liable for the infringement. Microsoft argued that in exporting an installation disc to foreign manufacturers, it was shipping an abstract form of the software, not the patented mechanism itself.
So the dispute between technology giants AT&T and Microsoft began over a simple matter of licensing. But in defending itself, Microsoft elevated the case to a matter of basic legal principle. In so doing, the company put in jeopardy what many believe to have been one of Microsoft’s own bedrock principles: proprietary rights to intellectual property governing software.
Now, by Microsoft’s victory, the whole notion that software is patentable will be open to challenge, and the language in this morning’s decision will be cited in those challenges.
The court’s opinion in detail becomes even more explicit: “This case poses two questions: First, when, or in what form, does software qualify as a ‘component’ under [Section] 271(f)? Second, were ‘components’ of the foreign-made computers involved in this case ‘supplie[d]’ by Microsoft ‘from the United States’?”
No one, the High Court concedes, would argue that software is never a “component” worthy of protection under law, so it’s only a matter of when and where. Here is where the language becomes crystal clear:
“Software, the ‘set of instructions, known as code, that directs a computer to perform specified functions or operations...can be conceptualized in (at least) two ways. One can speak of software in the abstract: the instructions themselves detached from any medium. (An analogy: The notes of Beethoven’s Ninth Symphony.) One can alternatively envision a tangible ‘copy’ of software, the instructions encoded on a medium such as a CD-ROM. (Sheet music for Beethoven’s Ninth.)”
Given that there must be abstractions, where can we draw the dividing line between the abstract and the real material worthy of protection? The Court ruled that line does not extend even an inch into the abstract realm – effectively stating that abstract code (essentially source code by another name) cannot be afforded such protection.
Specifically, a real component could be combined with a computer directly to become something worth protecting. But if you can’t plug it in and turn it on –- for instance, if it needs to be interpreted or compiled first –- then it’s not real yet.
“Until it is expressed as a computer-readable .copy,. e.g., on a CD-ROM, Windows software - indeed any software detached from an activating medium - remains uncombinable. It cannot be inserted into a CD-ROM drive or downloaded from the Internet; it cannot be installed or executed on a computer. Abstract software code is an idea without physical embodiment, and as such, it does not match §271(f)’s categorization: ‘components’ amenable to ‘combination’.”
While Microsoft walks away from the Supreme Court a huge victor this morning, and that "Ode to Joy" its counsel are hearing may be the voices of its former opponents in the market, the impact of this decision may be so devastating that it could ironically impact Microsoft itself in another regard: its interoperability code, which the European Commission argues should be licensed to competitors for nothing or close to nothing.
As the Supreme Court has found, software remains patentable, but any code that must be reinterpreted to become functional is not – and scholars will interpret that to include source code as well.
The case does not indicate that software and a computer device on which it is installed is not patentable. It relates to whether the software master disk that Microsoft supplied to an overseas company amounted to supplying a component of a patent invention. The court indicated that it did not, since copies of the master disk were installed on the computers, and the overseas company made the copies, not Microsoft. The overseas company's actions were ok since the US patent did not cover this activity.
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|You're absolutely right, burgerking, and I don't believe that's what this piece said. The AT&T ruling supported Microsoft's argument that source code was not patentable. You can't call something a virtual device, or virtually a device, simply because you sketched a program in code. You have to compile it, or run it through an interpreter; and while you might not think there's a difference, there certainly is a difference for the people who share source code with one another, as they learn how to perfect the craft of programming.
-SF3
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|http://www.supremecourtu...nions/06pdf/05-1056.pdf
SUPREME COURT OF THE UNITED STATES
Syllabus
MICROSOFT CORP. v. AT&T CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 05–1056. Argued February 21, 2007—Decided April 30, 2007
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|Well, it should make for some interesting legal headlines in the months ahead.
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|Sure gets complicated when ideas can be owned.
If I am thinking thoughts that belong to someone else can they get an injunction on my brain? And then how can they know for sure that I have stopped thinking their ideas?
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|there is always the tinfoil hat defense....
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|My mind is like an astronomical black hole. Once an idea falls in it will never get out.
I could further the analogy with comments about stoped time and infinite mass, but it would just be distracting.
So you can see the tin foil hat would not solve the problem.
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|Ignorance of lawyers and judges combined with gifts thrown in to rule in such an insane way...
Ruling that source code can't be patented it's insane and a pure disgrace. These people are killing capitalism and are killing freedom with their communistic-socialistic '68 driven visions...
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|I'm not a big fan of Microsoft, but I'll take Microsoft over AT&T any day of the week. AT&T being fairly high up on my list of Most Hated Anit-Consumer Corporate Juggernauts, just a couple of places below Sony.
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|"... the impact of this decision may be so devastating that it could ironically impact Microsoft itself in another regard: its interoperability code, which the European Commission argues should be licensed to competitors for nothing or close to nothing."
So it appears the demands of the EU are suddenly realized in the US and is found to be warranted. Still ... Only took a supreme court, a patent system in need of dire reform and two billion dollar company's to thrash it out to come up with a "... Landmark desicion" !. But the EU told ya first :)
More tea anyone ...
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|if "its interoperability code, which the European Commission argues should be licensed to competitors for nothing or close to nothing" and the US agrees, then Microsoft will no longer put forth any money toward the R&D of interoperability code. Why would Microsoft poor millions into something that is worth "close to nothing"? Their new motto would be "let the OS community develop it and then Microsoft can use it."
With big companies pulling millions out of R&D you will see innovation eventually decrease.
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|And watch lots more source code becoming encrypted with algorithms such as AES.
Overhead? Why sure! But hey, thats what the high powered CPUs are for, aren't they? You sure don't need then for MS Office. ;-)
But more likely, more code tightly coupled to particular platforms. So much for portability which I suspect will be the BIG casualty. And that is anything but a victory for open source.
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|Encrypted source code ?? What are you talking about ?
If it's source code it's source code.. period.
Encryption takes place at the linker/compiler levels.
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|the eu argues many things, not all of them logical, and the majority of them politically motivated.
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|DRM for source code, you're a real brainiac.
If it can be compiled it can be copied.
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|They'll just invent a new source code language for every "component". All cryptic and convoluted of course, just like their licensing terms.
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|As the Supreme Court has found, software remains patentable, but any code that must be reinterpreted to become functional is not – and scholars will interpret that to include source code as well.
Microsoft aims for the foot and turns the head into a fine red mist.
Oops.
Isn't the source code to Windows 2000 floating around out there in "torrent" form?
100% Win2k compatible Linux, anyone?
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|Even if it were (and it's only a fragment of the source code as it stands right now), the invalidation of any patents on Windows does not invalidate the copyrights on it, and so it would be illegal to incorporate such code into Linux. No developer who wants to be taken seriously has done much more than skim things, because the threat of including Microsoft code in any other product is enough to preclude hiring that person.
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|Windows isn't open source. Thus you would get hit with a copyright violation. It was stolen for Christ sake LOL.
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|LOL?
The whole case concerned code that is closed source and also probably copyrighted.
Of course it was stolen, hence why it's floating around on torrents, and not downloadable from Microsoft's website, eh?
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|Excellent point. The copyrights evidently would still have standing.
I wonder if this will be challenged next, and how this would be decided in light of the above decision?
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|The case was about a patent MS licensed from ATT.
MS wrote and owns the code, ATT just owns the idea.
If you want to sell a device that talks like a drunken swede in the USA you still need to pay ATT.
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|The Supremes to the rescue!!!
Baby, baby, baby..
baby don't leave me...
Ain't no mountain high enough,
ain't no valley low enough...
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|Open Source! We Win!
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|Not with your available desktop you don't!
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|English please?
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|Funny, thats the typical users reaction to Linux.
Which, after 15 years, still lacks a desktop environment thats going anywhere.
Let's see...15 years for free and still no appreciable market share versus a product that so many claim to hate and simultaneously complain is overpriced.
You do the math.
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|About time you did something good, even though it was done as a consequence, and not to help open source advocates.
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|They do good all the time, just because it isn't for you, doesn't mean it's not so, go look them up. wah wah
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