MS v ATT: Patenting Software

Here's an interesting summary of the oral arguments of Microsoft v AT&T this week in the Supreme Court. Microsoft is infringing AT&T's patents with Windows. MS is saying since the master disk is copied onto machines in another country for manufacturing that US patent law doesn't apply. This is the first time that the Supreme Court is dealing with software patents so it's interesting on that front.

Questions were asked on whether software was patentable (Breyer, Stevens), whether the source code or the machine code was patentable and whether the code itself or the disk containing the code was patentable (Kennedy, Stevens, Ginsberg). "Justice Alito asked whether any machines other than computers have components that are not physical things. Waxman said that he could not think of any." I think a player piano qualifies, and maybe any recording device.

The problem with all of this is that software is a little like quantum mechanics. It behaves as both an invention (patentable)and as an expression of thought (copyrightable), like being both a particle and a wave. I think in these discussions it's ridiculous to discuss anything but the software itself as opposed to the disk or printout it might happen to be on, though the ability to make copies is the whole point of copyright protection.

People forget that the point of patents is to increase competition by having inventors reveal their inventions publicly with a patent as opposed to just keeping them secret. This allows others to build on the invention. At this point software patents are harming the industry, not helping. Having many patents gives the large companies a lot of power, but for a small company a patent can be a really valuable asset. There's certainly a lot of time and money spent on the issue.

I think the biggest problem is that 20 years protection for a patent is forever in the software world (let alone life of the author plus 70 years for copyright). Well that and the fact that really stupid patents are awarded. If you fixed that, I imagine a lot of problems go away.