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.