Anonymous Coward writes: "If you read the transcript from today's session, you can see that some (or all) of the Justices are suspicious of software patents.
Souter compares what MS did to sending a blueprint overseas- which apparently is not infringement:
JUSTICE SOUTER (to ATT): You are saying, I think, in essence if you send a blueprint — this is like a blueprint. It tells, it tells a machine which may be in Europe how to put the object code on other disks or on hard drives. The machine in Europe is following instructions just the way an artisan would follow a blueprint.
Kennedy accidentally describes (as non-infringing behaviour) the relationship between source code, a compiler and object code! This is really fascinating:
JUSTICE KENNEDY: But suppose, suppose you had a machine that makes another machine, and if you ship that machine to Europe — and there's a patent for the machine that makes it. If you ship it to Europe and it starts making another machine, the statute is not violated; and isn't that just what's happening here?
and Waxman falls all over himself to assert that that is NOT the case....
MR. WAXMAN: No, no, no. This is not a machine tool. The thing that was violated, the machine readable object code, is precisely what is installed on the computer and precisely what is moved from one part of the computer to another in different forms as the computer operates and it continually instructs. This is dynamic. It's not...
and Justice Breyer interrupts him:
JUSTICE BREYER: How would you, how would you — go back for a second, please, because, if you're finished with that, because I don't see how to decide for you without at the same time permitting a person to walk over to the Patent Office, to read that application and the description, which after all at least can be a very highly detailed set of instructions of how to make a machine, getting on the phone, explaining that just like the blueprint which it is just like to somebody in Europe. They then make it. And that on your reading would violate the statute. It can't be right that that would and you don't even think it would.
From this exchange it seems like sending source code to foreign country, which is then compiled down to object code, would have been OK. Object code is what runs- source code is just information to a machine how to make another machine, like a blueprint, at very detailed, as Breyer puts it, blueprint, but still a blueprint.
In the transcript, which is alternatively funny, (because owing to the ridiculous nature of software patents , the lawyers are all but invoking perfect Platonic Ideas to distinguish between object code and software in the abstract) then heartening you can see that the Justices have deep reservations about whether software should or can be patented.
JUSTICE SCALIA: That, that code is not patentable, you've said.
MR. WAXMAN: The code is not patentable. The expression is copyrightable. AT&T has not sought to get a patent on the code. AT&T has a patent on a system that can be practiced, among other ways, through the use of software.
JUSTICE BREYER: "We're operating under the assumption that software is patentable...but we've never held that in this court, ever, What should we do here?",
This is a fascinating case for a variety of reasons.
1) if MS loses, the follow-on implications for software development in the US are profound. Specifically, MS would no longer be able to export code overseas written here without incurring the wrath of patents filed in the US.
2) if MS loses, the following situation obtains:
A foreign (to the US) student studies cutting edge algorithms in class. Some of those happen to be patented by someone else, like RSA. This is just what graduate students have to do to be any good. The student then leaves the US and seeks employment with a US firm overseas. Can she get a job? Absolutely not. Anything she writes will have been "stolen fruit" in the eyes of the law. Her employer could be subject to charges of infringement over anything she writes. Why Because SHE HERSELF was the means of transmission back to her country. No doubt that is exactly where this goes.
Justice Breyer asks ATT
if "transmission purely of information" could be prosecuted as a violation.
"I would be quite frightened of deciding for you and discovering vast numbers of inventions that can be thought of in the way you describe this one," he said.
Breyer used the example of someone reading the text of a patent claim over the phone to someone in foreign country who later decided to make the same product, a reading of the law he said "can't be right,".
Of course all this nonsense stems from trying to extend patents into what should be COPYRIGHTED and trade secreted. That's where the problem lies."
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