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Re: SFLC: "a penumbra"

From: rjack
Subject: Re: SFLC: "a penumbra"
Date: Sat, 16 Dec 2006 16:40:39 -0500
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.0; en-US; rv:1.7.2) Gecko/20040804 Netscape/7.2 (ax)

Alexander Terekhov wrote:


Software Freedom Law Center Files Brief with Supreme Court Arguing
Against Software Patents

Brief Filed in Microsoft v. AT&T

NEW YORK, December 15, 2006 -- The Software Freedom Law Center (SFLC),
provider of pro-bono legal services to protect and advance Free and Open
Source Software, today filed a brief with the United States Supreme
Court arguing against the patenting of software.

In the case Microsoft v. AT&T, the Supreme Court will decide whether
U.S. patents can apply 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, expanding the
international reach of U.S. software patents. Microsoft appealed, and
the Supreme Court agreed to hear the case.

In its brief, SFLC argues that software copied and distributed outside
the United States 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, as such,
should be overruled.

"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," said Daniel Ravicher, SFLC Legal Director. "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

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. The ruling may
also decide whether software patents are even legally allowed to exist
in the United States.

"In contrast to the Federal Circuit, the Supreme Court has maintained
limits on patentable subject matter throughout U.S. history," said Eben
Moglen, Executive Director of SFLC. "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."

Software patents are an important issue for developers and users of Free
and Open Source Software. The Software Freedom Law Center, along with
other organizations, hosted a conference at MIT and Boston University in
November that addressed the legal, economic and social consequences of
software patents.

SFLC's brief is available on the Web here.

About the Software Freedom Law Center

The Software Freedom Law Center -- chaired by Eben Moglen, one of the
world's leading experts on copyright law as applied to software --
provides legal representation and other law-related services to protect
and advance Free and Open Source Software. The Law Center is dedicated
to assisting non-profit open source developers and projects. For
criteria on eligibility and to apply for assistance, please contact the
Law Center directly or visit the Web at ---------


The assertion by the Software Freedom Law Center that:

“I. Software Cannot Be A “Component[] Of A Patented Invention” Under § 271(f) Because Software Is Not Patentable Subject Matter Under § 101.”

contradicts the Supreme Court:

“In contrast, the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to pre-empt the use of that equation. Rather, they seek only to foreclose from others the use of that equation IN CONJUNCTION WITH all of the other steps in their claimed process.” Diamond v. Diehr, 450 US 175, 187.

The Federal Circuit was somewhat confusing when it ruled:

“Without question, software code alone qualifies as an invention eligible for patenting under these categories, at least as processes. . . Thus, this software code claimed IN CONJUNCTION WITH a physical structure, such as a disk, fits within at least those two categories of subject matter within the broad statutory label of “patented invention.”

Note what the Supreme Court said in Diamond v. Diehr about patent “claims”:

“We think this statement in Mackay takes us a long way toward the correct answer in this case. Arrhenius' equation is not patentable in isolation, but when a process for curing rubber is devised which incorporates in it a more efficient solution of the equation, that process is at the very least not barred at the threshold by 101.

In determining the eligibility of respondents' claimed process for patent protection under 101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made. The "novelty" of any element or steps in a process, or even of the [450 U.S. 175, 189] process itself, is of no relevance in determining whether the subject matter of a claim falls within the 101 categories of possibly patentable subject matter.” Diamond, supra.

One must be careful to define “Component[]” in context.

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