Software Freedom Law Center comes to Microsoft's aid

. . . keeping an eye on the penguin

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Dec. 15, 2006

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The Software Freedom Law Center (SFLC), a non-profit organization that provides pro-bono legal services to protect and advance open-source software, filed a brief today with the U.S. Supreme Court in support of Microsoft's appeal of a software patent decision.

Yes, Microsoft.

In the case of "Microsoft v. AT&T," the SFLC is asking the Supreme Court to decide against U.S. patents applying to software that is copied and distributed overseas. The Court of Appeals for the Federal Circuit, a specialized patent court known for allowing patents on software and business methods, originally decided in favor of AT&T. In that decision, the court said that U.S. software patents applied even if the violations happened outside the U.S.

Microsoft appealed the decision and the Supreme Court agreed to hear the case.

The SFLC explains in its brief that its unlikely championing of Microsoft's cause in this case is because the "SFLC has an interest in this matter because the decision of this Court will have a significant effect on the rights of the Free and Open Source Software developers and users."

In its brief, SFLC argues that software copied and distributed outside the U.S. cannot infringe U.S. patents. The brief also argues that the Federal Circuit's decisions declaring software to be patentable subject matter conflict with Supreme Court precedent, and thus should be overruled.

In a statement, SFLC Legal Director Daniel Ravicher said, "I expect many people will be surprised that the Software Freedom Law Center has filed a brief with the Supreme Court in support of Microsoft. In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents."

In Supreme Court decisions, the explanation for deciding a case is almost always more important than the outcome of the particular case at hand. In this case, the Court's decision will determine whether U.S. software patents can be used to restrict software development, distribution, and use throughout the rest of the world. While it's only a distant possibility the SFLC hopes that a Supreme Court ruling might even find that software patents are illegal.

Eben Moglen, SFLC's executive director and well-known free software attorney in a statement, noted that "in contrast to the Federal Circuit, the Supreme Court has maintained limits on patentable subject matter throughout U.S. history. The Supreme Court has consistently ruled that algorithms and mathematics cannot be patented. Since software is expressed as mathematical algorithms, it should not be patentable."

-- Steven J. Vaughan-Nichols

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