Patent Fights Are a Legacy of MP3's Tangled Origins (NYTimes)

Ideally, the courts will rule that patenting software (regardless of whether it is national or international) is an unacceptable practice and abolish them, but rule that the abolition is not retroactive and that Microsoft still has to pay the fine.

This is a company that illegally foistered its music solutions on the world - according to EU antitrust laws - and which has used every trick in the book to comply with the letter of the law whilst continuing its anti-competitive action. It is also a company that has been found guilty of copyright violations and other forms of code theft in the past.

In all probability, had the illegal tying not occurred, it is less clear Microsoft would have lost and even if they had, the fine would likely have been a fraction of the amount awarded. Likewise, had Microsoft not been a convicted serial violator when it came to respecting other people's code, the courts would likely have been far more believing of Microsoft's defense.

Microsoft may or may not have done something wrong from a strict patent perspective, but that's not the point. Software patents are blatantly unacceptable, but that's also not the point. Microsoft has, by its own hand, convinced too many people that it should not be given the benefit of the doubt, by abusing that trust and by manipulating the system for all it is worth.

Based on past behavior - which the judiciary is entitled to consider - Microsoft may well have honestly believed this to be a far more serious violation than mere technicality and was relying on that fact to gain an unfair advantage. The judiciary is also entitled to weigh the fact that Microsoft is not any ordinary company but has been ruled a monopoly. This seriously changes the rules of the game. It is unclear to me if either of these played any significant (or indeed any) role in the case, but it would not shock me. The penalty is simply too great to be just a random amount imposed on a rich but "normal" corporation.

Can the judges rule, though, that software patents should be abolished but NOT touch the fine? Sure, if the appeals court rules that the fine is to do with it being a technical violation by a convicted monopolist. It's then still a technical violation, no matter what the future status of software patents is, so I don't see how it would matter if the court also struck down such patents. I think it would also matter if Microsoft were seen to be purposefully violating the law with the intent of gaining an unfair advantage, because again that advantage would persist whether software patents continued or not.

(A marginally better outcome would be all of the above, with Congress then ordering a systematic, comprehensive review of all live patents to expunge all that are blatantly stupid, illegal or invalid and should never have been granted by anyone with enough brain cells to remain upright.)