Robert Pogson

M$ has lately taken to threatening Linux with non-Patents. They have even made deals with Linux distributors not to sue customers…

In fact, in a recent argument before the US Supreme Court:
see http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1056.pdf

on page 22 is written:

” 6 JUSTICE BREYER: I take it that we are
7 operating under the assumption that software is
8 patentable? We have never held that in this Court, have
9 we?
10 MR. JOSEFFER: No, but as I was saying
“

later, on page 27:

“17 JUSTICE STEVENS: Your time is up, but I
18 want to ask you one yes or no question. In your view is
19 software patentable?
20 MR. JOSEFFER: Standing alone in and of
21 itself, no.
“

BTW: Joseffer worked for US Dept. of Justice and was serving as amicus curiae supporting M$.

That is US law: for a thing to be patentable it must have a physical embodiment and not just an idea or information like software.

“101. Inventions patentable

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title [35 USC § §1 et seq.].”

Software is not any of those things that may be patentable. Software can be part of an invention like a new machine to do appendectomies or whatever, but the software itself is not patentable. M$ makes software that is not part of an invention by M$. The X-box is another matter. I am sure M$ has some patents on that. It is an assumption that because USPTO has issued some software patents that the USPTO is following the law. It clearly is not.

In particular:

“103. Conditions for patentability; non-obvious subject matter
(a)
A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title [35 USC 102], if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.”

Can anyone reasonably say that any software is not obvious to anyone who studies it? Once the syntax and semantics of a programming language are known, anyone can make a computer do anything permitted by the programming language. Anyone can add to or subtract from anything in a piece of software to make it into any other piece of software one logical step at a time. The ultimate example is the simulation. One can generate an infinite number of threads with an infinite number of steps randomly and come up with every possible simulation with no insight into a problem to be solved. There is no innovation in software whatsoever. Everything is a logical and obvious extension of what is known before. There is art and skill involved in creating good software but it is not innovation any more than a painting can be patented. Copyright is the appropriate IP law for software.

Infringement of non-existant software patents by Linux is just more FUD from M$.