Filed under: Developer, News, Windows, Microsoft
Microsoft tells Supreme Court: You Can't Patent Source Code?
by Victor Agreda, Jr. Feb 22nd 2007 at 9:30AM
My, what an interesting year we're having. First the Wow! starts, now the Wha? starts in earnest. It seems Microsoft might be arguing itself into a corner in front of the Supreme Court regarding software patents. How? Well, Microsoft uses a little bit of code from AT&T to make some speech recognition magic happen in Vista. The catch? they might not have licensed this code for use overseas. So AT&T sues, claiming MS violated the patent on the code itself-- saying they illegally copied it overseas, essentially. The arguments in front of the nation's highest court might finally settle the debate of software patentability. At issue is when source code becomes patentable or, if it ever is.AT&T's position is that Microsoft is stealing the code, just as a copycat manufacturer might steal Ron Popeil's magic Hair-in-a-Can.
But the arguments get pretty tangled when the court presses the issue of what, exactly, is patented. The resulting case has Microsoft arguing a point you may not have expected them to argue; You cannot patent source code or object code. Justice Souter keeps it real by comparing code to a blueprint, and ultimately saying that the copying of code onto hard drives using this blueprint, or the mere exportation of this code for such purpose, could constitute infringement. To defend itself, MS initially tried to claim that since the physical devices used to manufacture the PC's running said code are all made overseas and therefore are out of US jurisdiction (nice try). Failing that, they are taking this position: you cannot patent the series of instructions themselves, only the mechanism that delivers the functionality can be patented. Therefore, since they only shipped a master disc with code, they ain't violatin' nuttin' yer honor. The crux they claim, is that software doesn't become software until it's installed by the end user.
It's an interesting argument. AT&T has to now prove that the methods, the procedures, the instructions in the code, and not just the manifestation of said code, is indeed patentable. Thus, code is patentable (when created in a form that is executable), and just because you're only sending the blueprint via disc overseas but don't make the computer that executes the code it doesn't exclude you from the infringement. Clear as mud, isn't it?
Bear in mind, splitting hairs is what the Supreme Court is supposed to do. This time, they have a whopper of a case on their hands and there is no telling what will happen. The Justices are doing a great job so far trying to pin down exactly when the code become patentable, if at all. I have little doubt this will finally bring some closure to a hotly-debated topic, and will have ramifications throughout the tech world.
What does this mean for open source developers? Indeed, what does this mean for any developer who creates a novel methodology in their software, no matter how it is delivered? Stay tuned, right now there are more serious questions than there are solid answers.
[via BetaNews]
It's an interesting argument. AT&T has to now prove that the methods, the procedures, the instructions in the code, and not just the manifestation of said code, is indeed patentable. Thus, code is patentable (when created in a form that is executable), and just because you're only sending the blueprint via disc overseas but don't make the computer that executes the code it doesn't exclude you from the infringement. Clear as mud, isn't it?
Bear in mind, splitting hairs is what the Supreme Court is supposed to do. This time, they have a whopper of a case on their hands and there is no telling what will happen. The Justices are doing a great job so far trying to pin down exactly when the code become patentable, if at all. I have little doubt this will finally bring some closure to a hotly-debated topic, and will have ramifications throughout the tech world.
What does this mean for open source developers? Indeed, what does this mean for any developer who creates a novel methodology in their software, no matter how it is delivered? Stay tuned, right now there are more serious questions than there are solid answers.
[via BetaNews]
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Reader Comments (Page 1 of 1)
Gardiner Westbound said 9:46AM on 2-22-2007
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Surprising argument from Microsoft which has patents and copyrights on everything including the pattern on Bill Gates' underwear.
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Unearthed Ruminator said 11:08AM on 2-22-2007
If code isn't patentable can't someone just download MS's source code, change a couple of things, and market their own OS?
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Captain Lumpy Dog said 11:14AM on 2-22-2007
I love those hand-spider doohickies! They make me giggle.
Reply
Alex M said 11:16AM on 2-22-2007
Even if it's not patented, it still has copyright... right?
Reply
Phatman said 1:41PM on 2-22-2007
@Unearthed
No, for two reasons. First, you'd have to get access to Microsoft's source code. Since it isn't open source, they'd have to let you do it and they would require a non-disclosure agreement. Second, Once you take the source code and compile it, you have a product that is almost identical to Microsoft's. If you tried to distribute it, they would most certainly come after you for copyright infringement. Not for creating a copy of the source code but for creating the finished product.
Personally I hope Microsoft wins this case. I think software patents go against the very spirit of the patent process by detering innovation (for fear of infringing on a patent) instead of motivating new innovation. The very nature of software is that each generation builds on previous generations to improve.
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