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February 21, 2007 4:00 AM PST
Microsoft patent case stirs software export fears
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But a high-stakes patent case, set to be argued before the U.S. Supreme Court on Wednesday morning, has attracted a slew of briefs supporting the Windows maker's stance in a complex battle with AT&T over rules governing software code exported to foreign locales.
The question boils down to whether American software makers are required to pay up for infringing on U.S. patents based not only on the number of software copies they supply on their home turf, but also on copies that foreign manufacturers make abroad.
An obscure section of federal patent law prohibits American companies from shipping boxes of parts to foreign manufacturers that could combine them to make a machine that infringes on U.S. patents. It does not, however, restrict sending blueprints that could theoretically prompt a foreign company to concoct an identical product. Those siding with Microsoft argue that the "golden master" disks shipped abroad, containing software to be copied and installed on computers there, are mere blueprints, immune from patent liability.
There's widespread fear that a loss for Microsoft could deal a multibillion-dollar blow to the American software industry. Critics of lower court rulings favoring AT&T say they defy Congress' intentions, forcing American companies to pay damages based both on infringing activity in the United States and abroad, whereas a foreign company found to have infringed on a U.S. patent would only have to pay damages based on its U.S. sales.
"At its best, it amounts to a tax or surcharge on American-made software, which potentially puts U.S. software houses at a disadvantage with respect to their foreign competitors," said Dick Turner, a patent law partner at the firm Sughrue Mion in Washington, D.C.
Taken to its extreme, some argue such a legal climate could spur companies to shift their research operations offshore.
"It's go to Canada, go to wherever you're going to go, so that your conduct--shipping software around the world in a global economy--is not being subjected to this United States rule," said Joseph Miller, a law professor at Lewis and Clark College who filed a brief in support of Microsoft at an earlier stage of the litigation.
Microsoft petitioned the Supreme Court to weigh the issue after a federal district court and the U.S. Court of Appeals for the Federal Circuit both found the company liable not only for violating AT&T's patent in U.S.-assembled computers but also in those abroad. The software giant has conceded that Windows software object code, after being supplied to manufacturers and installed on computers, gave users the ability to record, store and play back speech in a way that violated AT&T's patent.
But Redmond--allied with companies such as Amazon.com, Intel and Yahoo, the free and open-source software movement, the American Intellectual Property Law Association, and the Bush administration--argues that Congress never intended to hold American companies liable for such violations committed outside the country.
If AT&T wants relief for patent infringement on foreign soil, its solution "lies in obtaining and enforcing foreign patents, not in attempting to extend United States patent law to overseas activities," the U.S. Department of Justice's Office of the Solicitor General wrote in its brief.
That's not the way AT&T sees it. Attorneys for the corporation argue Congress adopted that portion of patent law precisely to provide extra international protection.
"It understood that foreign patent protections are sometimes weaker than their U.S. counterparts, and...it wished to spare U.S. patent holders from the considerable expense of obtaining patent protections in dozens of foreign jurisdictions," they wrote in a brief filed with the high court. (PDF)
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American Software, AT&T Corp., open-source software, patent, U.S.
81 comments
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Sounds like a double standard to me. I don't like AT&T, but my vote is with them on this one.
Also, it's a dilemma yes, but a bad precedent here could mean worse laws and legal climates down the road.
If reducing and hopefully eliminating software patents and their problems down the road means defending MSFT in court now? Okay.
Everyone deserves to be free from being victimized by software patent laws - even those who wish to be the biggest perpetrators of it. It is in avoiding a double-standard here that we appear to be applying one elsewhere. "$Devil && $Deep_Blue_Sea" and all that.
/P
Sounds like a double standard to me. I don't like AT&T, but my vote is with them on this one.
Also, it's a dilemma yes, but a bad precedent here could mean worse laws and legal climates down the road.
If reducing and hopefully eliminating software patents and their problems down the road means defending MSFT in court now? Okay.
Everyone deserves to be free from being victimized by software patent laws - even those who wish to be the biggest perpetrators of it. It is in avoiding a double-standard here that we appear to be applying one elsewhere. "$Devil && $Deep_Blue_Sea" and all that.
/P
Master disks are not blueprints, they are product.
If Microsoft shipped the raw code to another country and compiled it there, then it would be blueprints, which I seriously doubt they would do.
This is just another example of how screwed up our current patent laws are when it comes to the digital world and our elected leaders do not understand the tech enough to fix it.
Master disks are not blueprints, they are product.
If Microsoft shipped the raw code to another country and compiled it there, then it would be blueprints, which I seriously doubt they would do.
This is just another example of how screwed up our current patent laws are when it comes to the digital world and our elected leaders do not understand the tech enough to fix it.
1) they can assert their filled-with-junk patent portfolio against all US based companies all over the world.
2) they have disincentivized Americans from going into software development, to the point where Americans and people living in America will simply desert it as a profession- since no one will be able to have a start-up anymore; the cost of starting up a company will now include exhaustive and financially exhausting patent reviews.
Given the broad and vague nature of patents, this would result in nothing but a state of total uncertainty anyway. Further, as more ideas are patented, the scope of "forbidden" ideas - which is already so big you can't code two lines without violating someone's patent - will become enormous.
There will be no more "start-ups" in the sense of a small band of developers selling software and bringing, you know, value to the marketplace- the kind of value (created with the kind of low overhead" that M$ can't compete against. )
This will in turn result in massive importation of H1Bs etc etc who are getting a better deal moving here (without a hope of starting their own company )than living where they are and selling fruit on a corner stand. That's just the kind of broken-willed,pliable and obedient servants MS needs manning its keyboards. Financial incentives for innovation will be determined not by the marketplace, but by internal M$ management and their HR departments.
2. This will give them the ability to go after any Linux distro that is sold abroad in US courts. That combined with Ballmer's reiteration of their intention to close down Linux via IP infringement lawsuits, and you see where this goes.
IF M$ loses (like they want to) , I am going to do what all smart developers are going to do. I am going to move to Canada (or perhaps the EU).
I got into this to create software, see my vision realized, bring value to society and leave the world a better place than I found it to whatever extent I am able. M$ is determined that no one be able to do this, so Ballmer and company can have more money.
If America wants, through the injection and invasion of IP laws into areas where it absolutely doesn't belong, harass , abuse, demoralize and disenfranchise it's programmer-citizens, then they're going to do what people in all places and at all times have done- leave for a part of the world where there is greater freedom and greater financial opportunity.
America, I hardly knew ye.
thought to software patents. It was useful for a time, but didn't
make much, so I resumed my career in another field.
In 04, I semi-retired and started researching another shareware
product. Then in 05 I retired fully and started developing the
thing full time. And started reading patents. The ones I have
found in my field don't seem to be nonobvious extensions of
what is in textbooks from the 1970s. As you say, you can't write
two lines without infringing something somewhere.
So my question now is, why do shareware and other small
development efforts continue to appear? Do we know something
they don't know, or vice versa? I have a feeling I am about to find
out.
infringing a patent somewhere, what does that imply for education?
Can someone who is learning to program legally write something
that infringes? I seem to recall that patents protect inventions
against infringement for any reason. You can't make something
that is patented by someone else even for you own use. Is that
correct, or am I dreaming?
1) they can assert their filled-with-junk patent portfolio against all US based companies all over the world.
2) they have disincentivized Americans from going into software development, to the point where Americans and people living in America will simply desert it as a profession- since no one will be able to have a start-up anymore; the cost of starting up a company will now include exhaustive and financially exhausting patent reviews.
Given the broad and vague nature of patents, this would result in nothing but a state of total uncertainty anyway. Further, as more ideas are patented, the scope of "forbidden" ideas - which is already so big you can't code two lines without violating someone's patent - will become enormous.
There will be no more "start-ups" in the sense of a small band of developers selling software and bringing, you know, value to the marketplace- the kind of value (created with the kind of low overhead" that M$ can't compete against. )
This will in turn result in massive importation of H1Bs etc etc who are getting a better deal moving here (without a hope of starting their own company )than living where they are and selling fruit on a corner stand. That's just the kind of broken-willed,pliable and obedient servants MS needs manning its keyboards. Financial incentives for innovation will be determined not by the marketplace, but by internal M$ management and their HR departments.
2. This will give them the ability to go after any Linux distro that is sold abroad in US courts. That combined with Ballmer's reiteration of their intention to close down Linux via IP infringement lawsuits, and you see where this goes.
IF M$ loses (like they want to) , I am going to do what all smart developers are going to do. I am going to move to Canada (or perhaps the EU).
I got into this to create software, see my vision realized, bring value to society and leave the world a better place than I found it to whatever extent I am able. M$ is determined that no one be able to do this, so Ballmer and company can have more money.
If America wants, through the injection and invasion of IP laws into areas where it absolutely doesn't belong, harass , abuse, demoralize and disenfranchise it's programmer-citizens, then they're going to do what people in all places and at all times have done- leave for a part of the world where there is greater freedom and greater financial opportunity.
America, I hardly knew ye.
thought to software patents. It was useful for a time, but didn't
make much, so I resumed my career in another field.
In 04, I semi-retired and started researching another shareware
product. Then in 05 I retired fully and started developing the
thing full time. And started reading patents. The ones I have
found in my field don't seem to be nonobvious extensions of
what is in textbooks from the 1970s. As you say, you can't write
two lines without infringing something somewhere.
So my question now is, why do shareware and other small
development efforts continue to appear? Do we know something
they don't know, or vice versa? I have a feeling I am about to find
out.
infringing a patent somewhere, what does that imply for education?
Can someone who is learning to program legally write something
that infringes? I seem to recall that patents protect inventions
against infringement for any reason. You can't make something
that is patented by someone else even for you own use. Is that
correct, or am I dreaming?
What needs to be done to fix the problem:
1) Fund the USPTO by direct appropriation.
2) Raise the salaries of the examiners, especially the starting salaries.
3) Hire more examiners.
4) Base bonuses and raises of examiners on something besides number of applications processed.
disclaimer: I am a scientist, who has procured patents. I don't have any friends or relatives at the USPTO.
software patents. Are there siginificant numbers of junk software
patents (by which I mean patents granted on obvious
improvements or outright prior art), and if there are, should
something besides litigation be done about them?
The answer is, no there's no reason for patents to be issued. My proof? I have an existence proof- the state of affairs prior to say 2000, when very few sw companies were getting patents. Lots of innovation, competition and economic activity. Market share was determined by value.
Not everyone knows the Constitution specifically mentions patents. They are to awarded for the SOLE Y for the purpose of promoting the useful arts and sciences. Absent that promotion, no patent is to be given. All "should this be patentable" questions come down to a question of social utility- does it serve the large good? The answer with sw patents, is no, it doesn't.
So we know that sw will thrive in a non patent atmosphere. Why are we patenting them?
We also know that overly broad laws and laws that unnaturally constrain people lead to contempt for government and for the rule of law generally. Want to tell tens of millions of developers that they're going to be subject to civil prosecution for writing code? Go ahead. See how that works out for you. How'd it work out for the record industry, which arguable had a good moral and legal position?
Turn us into criminals. See what happens to your society.
That alone will reduce the workload by the majority.
/P
What needs to be done to fix the problem:
1) Fund the USPTO by direct appropriation.
2) Raise the salaries of the examiners, especially the starting salaries.
3) Hire more examiners.
4) Base bonuses and raises of examiners on something besides number of applications processed.
disclaimer: I am a scientist, who has procured patents. I don't have any friends or relatives at the USPTO.
software patents. Are there siginificant numbers of junk software
patents (by which I mean patents granted on obvious
improvements or outright prior art), and if there are, should
something besides litigation be done about them?
The answer is, no there's no reason for patents to be issued. My proof? I have an existence proof- the state of affairs prior to say 2000, when very few sw companies were getting patents. Lots of innovation, competition and economic activity. Market share was determined by value.
Not everyone knows the Constitution specifically mentions patents. They are to awarded for the SOLE Y for the purpose of promoting the useful arts and sciences. Absent that promotion, no patent is to be given. All "should this be patentable" questions come down to a question of social utility- does it serve the large good? The answer with sw patents, is no, it doesn't.
So we know that sw will thrive in a non patent atmosphere. Why are we patenting them?
We also know that overly broad laws and laws that unnaturally constrain people lead to contempt for government and for the rule of law generally. Want to tell tens of millions of developers that they're going to be subject to civil prosecution for writing code? Go ahead. See how that works out for you. How'd it work out for the record industry, which arguable had a good moral and legal position?
Turn us into criminals. See what happens to your society.
That alone will reduce the workload by the majority.
/P
This is all coming from a small group of weirdo academics holed up in the basement of the Chicago School of Business and a few right-wing think tanks who have decided that IP is what makes countries rich and the more IP, the better ad that IP should be extended into any and all domains. A group of "thinkers" like that got us into Iraq. Isn't it cool what academics and greedhead business freaks can do when they get together and buy a bunch of politicans?
This is all coming from a small group of weirdo academics holed up in the basement of the Chicago School of Business and a few right-wing think tanks who have decided that IP is what makes countries rich and the more IP, the better ad that IP should be extended into any and all domains. A group of "thinkers" like that got us into Iraq. Isn't it cool what academics and greedhead business freaks can do when they get together and buy a bunch of politicans?
part of the constitution, too, and it was clear to me that software
and business method patents are not covered by that provision of
the constitution. I think that in both of those realms, what you have
are essentially mathematical formulas or algorithms. I can't imagine
what twisted logic got them included under the patent system. I
suppose I could read the relevant cases, but doubt I'd gain by such
a waste of time.
part of the constitution, too, and it was clear to me that software
and business method patents are not covered by that provision of
the constitution. I think that in both of those realms, what you have
are essentially mathematical formulas or algorithms. I can't imagine
what twisted logic got them included under the patent system. I
suppose I could read the relevant cases, but doubt I'd gain by such
a waste of time.
In the early 70s, ATT had a virtual monopoly over long distance phone service, & the were broken up into the "Baby Bells to end that situation. Mow almost all of the Baby Bells are owned by either ATT or Verizon, both of which are buying out most of the telecommunication & cable industry. MS controls about 90% of the world wide software market & are expanding into all aspects of IR, making MS an almost total monopoly. Dish Networks & Direct TV are merging, giving them a monopoly if they succeed. Do you see where all of this is heading? Monopolies are back with a vengeance. No matter who wins this case, or any other case involving these corporations, we all lose.
Government has no clue about IT issues. After reading the articles from IT people, it appears they have no clue about politics, For 16 of the past 18 years, conservatives who favor big business have controlled either the Presidency, Congress, or both. Therein lies the real problems faced by startups & open source. I normally do not endorse complete control of govt by either party, but this time I believe we have no choice but to vote the neocons out of office in both branches.
administration redeems itself somehow in the minds of the voters.
Likely? Not so much.
Both parties, both ideological poles, both groups in government are equally guilty of this crap.
Evidence? Let's start with one big fat one to show total culpability on both sides of the issue: The DMCA was signed into law by one Bill Clinton, and was bipartisan legislation by all accounts.
So, please, leave the NPR editorials and your ideological hating to radio - we have enough problems with half-informed mouth-breathers spouting off their ideology in a tech forum as it is without your adding to it.
Thx in advance,
/P
In the early 70s, ATT had a virtual monopoly over long distance phone service, & the were broken up into the "Baby Bells to end that situation. Mow almost all of the Baby Bells are owned by either ATT or Verizon, both of which are buying out most of the telecommunication & cable industry. MS controls about 90% of the world wide software market & are expanding into all aspects of IR, making MS an almost total monopoly. Dish Networks & Direct TV are merging, giving them a monopoly if they succeed. Do you see where all of this is heading? Monopolies are back with a vengeance. No matter who wins this case, or any other case involving these corporations, we all lose.
Government has no clue about IT issues. After reading the articles from IT people, it appears they have no clue about politics, For 16 of the past 18 years, conservatives who favor big business have controlled either the Presidency, Congress, or both. Therein lies the real problems faced by startups & open source. I normally do not endorse complete control of govt by either party, but this time I believe we have no choice but to vote the neocons out of office in both branches.
administration redeems itself somehow in the minds of the voters.
Likely? Not so much.
Both parties, both ideological poles, both groups in government are equally guilty of this crap.
Evidence? Let's start with one big fat one to show total culpability on both sides of the issue: The DMCA was signed into law by one Bill Clinton, and was bipartisan legislation by all accounts.
So, please, leave the NPR editorials and your ideological hating to radio - we have enough problems with half-informed mouth-breathers spouting off their ideology in a tech forum as it is without your adding to it.
Thx in advance,
/P
/P
/P