The U.S. Supreme Court today basically put off for another day the issue of whether software applications are patentable. In Bilski et al v. Kappos, the court ruled 5-4 that Bernard Bilski and his partner, Rand Warsaw, were not entitled to a patent for their software that helps commodities traders in the energy market hedge against the risk of price changes.
While the ruling still denies Bilski and Warsaw their patent, the justices didn't address the broader issue of the patentability of business process software that open source and free software advocates had wanted.
Microsoft was one of 65 entities filing amicus briefs with the court in connection with the case. "Many urged the court to keep patent protections flexible," McClatchy Newspapers reported. Microsoft declined to comment on the ruling when I e-mailed its PR firm this morning. But a look not too far back shows that, like Sen. John Kerry and the Iraq war, Microsoft was for free software before it was against it.
The evolution of Microsoft's stance is detailed in a New York Times op-ed piece from June 9, 2007, in the wake of comments at the time from Microsoft's general counsel, Bradford Smith, accusing users and developers of free software products of patent infringement and demanding payment of royalties.
This position is 180 degrees the opposite of then CEO Bill Gates' position on software patents in 1991, writer Timothy Lee noted: "In a memo to his senior executives, Bill Gates wrote, 'If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.' Mr. Gates worried that 'some large company will patent some obvious thing' and use the patent to 'take as much of our profits as they want.'"
Lee provided some perspective: In 1991, when courts were just beginning to uphold software patents, Microsoft had just eight and was battling patent powerhouses like IBM and Novell. By 2007, it had about 6,000.
Microsoft is known today for vigorously defending its patents, obvious or not, to the point of being called an "alley thug," by one defendant, Salesforce.com CEO Marc Benioff. Benioff made the remark about the "former leader of our industry" prior to his company filing a counter patent suit against Microsoft last week. However, I don't think Microsoft deserves the "patent troll" moniker Benioff gave it, as it doesn't simply buy patents to sue alleged infringers, but defends the patents on software it created itself.
Sure enough, though, Microsoft just came out on the losing end of a patent infringement case over an "obvious thing." The Supreme Court on May 24 refused to review an appeals court ruling that Microsoft had infringed on phone network equipment vendor Alcatel-Lucent's patent, described as "a method of entering information into fields on a computer screen." Alcatel-Lucent argued, and the courts agreed, that Microsoft violated its patents with the data entering feature on Microsoft's Outlook calendar, Money and Windows Mobile apps. Microsoft argued, unsuccessfully, that the Alcatel-Lucent patent was "anticipated or obvious."
Without a clear ruling today against software patents, the free software movement is reduced to seeking patent reform in Congress, but it may be a slim hope. "Only new legislation could restrict the scope of patentable subject matter beyond the Supreme Court's permissive stance," wrote Florian Mueller on his Free and Open Source Software (FOSS) organization blog. "But restrictive legislation is a long shot to say the least."
Given the support of major corporations like IBM -- and, perhaps, a "reformed" Microsoft -- for patent protection, Mueller lamented that "it is hard to see how the opponents of software patents could successfully lobby the United States Congress."
Robert Mullins is a freelance journalist based in San Francisco. He has been writing about technology from Silicon Valley for more than a decade. He has covered such beats as network security, servers, storage, software development, telecommunications and, of course, Microsoft, for a variety of publications, most notably the IDG News Service and Network World.