Microsoft/AT&T patent decision from the U.S. Supreme Court [LWN.net]

Microsoft/AT&T patent decision from the U.S. Supreme Court

Posted May 3, 2007 21:41 UTC (Thu) by giraffedata (subscriber, #1954)
Parent article: Two patent decisions from the U.S. Supreme Court

decided that Microsoft is not responsible for violations of U.S. patents which happen elsewhere in the world.

That was not the holding at all. It is already well established that violations of US patent law can't happen outside the US. This is a case where the alleged violation took place in the US -- Microsoft prepared and shipped, in the US, a version of Windows that uses an AT&T speech compression invention.

This isn't a violation of ordinary patent law, because the law views software as just information, not a device, so preparing bits doesn't violate a patent. To infringe the patent in this ordinary way, Microsoft would have to build a computer that runs that Windows. But there's a special provision in US patent law adding to the protection of a patent the shipping from the US of a major component of an infringing device.

So the question is whether what Microsoft shipped was a component of the foreign computers that ultimately got built with that version of Windows. The court said information itself can't be a component. The computers' disk drives and CDROMs containing Windows are a component, but Microsoft didn't ship those; Microsoft shipped a master and the foreign manufacturers copied the information onto CDs and disk drives.

The court likened shipping of a Windows master to shipping the blueprints for a machine. Blueprints are understood not to be a component of the machines you build with them.

The view that software cannot be a device seems primitive to me, but until the law gets with the times, this holding should be good for software developers, regardless of the international aspect. It says if you keep your work sufficiently soft (never send hardcopy; maintain distance between you and its ultimate installation) you can avoid patent liability.

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Microsoft/AT&T patent decision from the U.S. Supreme Court

Posted May 5, 2007 12:26 UTC (Sat) by ddaa (subscriber, #5338) [Link]

So, according to you, the ruling establishes that:

Software in itself cannot be an invention.
Combining software with a generic computer can constitute an invention.
If the combination happens outside of the USA, then USA courts have no business with it.

Am I understanding your interpretation of the case clearly?

That seems strangely contrived. It appears to me there is some subtext here:

You guys twisted the law into patenting software.
There is a loophole in your scam, in that software needs to be combined with a computer to be effectively an invention.
Because we can, we make that loophole very clear and set a precedent.
Now please go back to buying laws, and be gone of my court.

That, or the court is truly being a vehicle of the of the law, and I am completely imagining this subtext.

DISCLAIMER: Being a continental European, I am probably unable of understanding the anglo-american law system.

Microsoft/AT&T patent decision from the U.S. Supreme Court

Posted May 5, 2007 21:23 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

Software in itself cannot be an invention.
Combining software with a generic computer can constitute an invention.
If the combination happens outside of the USA, then USA courts have no business with it.

Am I understanding your interpretation of the case clearly?

Well, the case doesn't establish anything like that, but maybe you meant my interpretation of the law surrounding the case. In that case, this is basically right. But:

The word "invention" isn't really right here, because an invention is the intellectual product behind the software or computer, but "apparatus" works. Patents let an inventor control creation of apparatus, not invention.
The courts have some business in the extra-US combination because it has business in shipping of the parts to be combined. But in the combination per se, you're right -- the courts know it's none of their business.

As I said, none of the above is new in this case; it's all from previous cases. What's new in this case is that shipping of a master copy of software, copies of which are to be built into computers, is not the same thing as shipping a component of a computer.

You guys [inventors, I guess] twisted the law into patenting software.
There is a loophole in your scam, in that software needs to be combined with a computer to be effectively an invention.

That's no loophole, it's a complete contradiction of the assertion that you can patent software. First of all, there's the terminology issue from above -- you can't patent software (or hardware). You can patent only an invention. Second, while you can with a patent stop someone from building an apparatus, you cannot stop someone from writing a program. No twisting, no loophole. It's always been that way.

What is relatively new in the US and thought to be screwy by many people, is that you can with a patent stop someone from building an apparatus that uses software to implement an invention. What LWN calls a "software patent" is a patent on an invention that is realized by loading certain software into a computer. As opposed to, say, soldering certain wires into it.

There used to be a loophole (not related to software -- it was before software was a big deal) in patent law in that the same computer that would be illegal to build in the US and ship to Mexico, you could build in two individually useless parts in the US, ship those parts separately to Mexico, and assemble them there. Congress attempted to close that loophole, but left open to interpretation whether shipping a master CD to Mexico, to be copied into a computer there, is covered.