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Supreme Court to examine 'obviousness' of patents
November 27, 2006 -
Supreme Court to review Microsoft patent appeal
October 27, 2006 -
Supreme Court won't review Microsoft patent appeal
October 31, 2005 -
AT&T wins round in patent case
February 10, 2004 -
Microsoft, AT&T in $5 billion pact
May 6, 1999
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Backers of free and open-source software hope the case will not only shield software makers from liability abroad, but will also open the door for the justices to make a more sweeping pronouncement: that Congress never intended for patent law to cover software in the first place.
"It could indeed be a landmark decision because the Supreme Court has never answered the question of whether software per se is patent eligible subject matter," said Daniel Ravicher, legal director for the Software Freedom Law Center, which provides legal services to developers of free and open-source software.
Patent season in D.C.
The case marks the latest in a series of patent disputes the high court has accepted during the past year. The seemingly high interest is likely a nod to growing dissatisfaction with the U.S. patent system voiced in recent years by members of Congress and technology companies alike.
The feud that goes before the justices Wednesday may involve two of the nation's most prominent corporations, but its outcome is expected to affect software companies more squarely than other industries.
That's because arguments focus on questions specifically about software related to Section 271(f) of federal patent law, which was added in 1984. That provision decrees Americans can be held liable for supplying any "components" from the United States to foreign manufacturers if their intent is to create a product that would have infringed a U.S. patent had it been physically assembled in the United States.
The rules stemmed from an incident in which Deepsouth, a maker of shrimp-deveining machines, attempted to avoid infringing a competitor's patent by building parts in the United States, shipping them abroad, and assembling them there. After a divided U.S. Supreme Court ruled that the company was not liable for infringement because there was no law prohibiting the production or use of a U.S.-patented product outside of the country, Congress enacted 271(f) in hopes of plugging that perceived loophole.
In AT&T's view, Microsoft's software code amounts to "not just a component, but the key component of the foreign-made devices." For that reason, it should be forced to pay damages based on code it supplied both at home and abroad--naturally, a substantially higher award.
"Although that object code must be combined with physical components to form such a device, it is plainly a component of that device, just as a unique collection of intangible words is a component of any book bearing the title Moby-Dick, even though those words, too, must be combined with ink and paper before the book can be read," AT&T's attorneys argue in their brief.
A district court reached a similar conclusion at the earlier stages of litigation, and the Federal Circuit appeals court upheld that ruling.
In its brief (PDF), Microsoft claims its master disks are not technically "components" of the invention. Rather, they're nothing more than a "template," analogous to "a mold or die used to produce copies of one of the parts of a shrimp deveining machine."
Viewed another way, the software code on the master disk is merely a set of instructions telling a computer how to do something, and not a "component" in the sense that Congress intended, Microsoft and its supporters argue.
"Unlike a machine part, disembodied software cannot be simply 'snapped into place,'" attorneys for Yahoo wrote in a supporting brief (PDF).
Microsoft also argues it shouldn't be punished because the "components" in question were made outside the United States. It says all it did was make available a limited number of "golden master disks" whose code was never directly installed on any of the machines ultimately sold overseas. It was the foreign manufacturer that duplicated the code from the disk and installed it on individual machines, thus leading to a violation of AT&T's patent.
See more CNET content tagged:
American Software, AT&T Corp., open-source software, patent, U.S.
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
- Looks as if Software Patents themselves may go bye-bye...
- by Penguinisto February 22, 2007 8:07 AM PST
- Man, I'm soooooo hoping the USSC ditched software patents altogether...
- Like this Reply to this comment
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