The Supreme Court this week had a chance to dig deeper into the issue of software patents as it resided over oral arguments in the patent case between Microsoft and AT&T.
The companies went before the high court with a relatively straightforward dispute: Is Microsoft violating U.S. patent law by sending master copies of Windows to foreign manufacturers for replication on computers made outside the United States?
Whether Windows is copyrighted or patented is simply not germane to the case. But that didn't prevent the justices from asking whether software can be patented -- even though they're not ruling on it here.
Certain facts in the case are beyond dispute. The Windows code contains speech coding and decoding technology patented by AT&T. Microsoft pays royalties to AT&T for all U.S. copies of Windows.
Microsoft also ships the Windows object code -- complete with the AT&T speech technology -- to foreign companies. The code is then copied and installed on computers assembled and sold overseas, beyond the reach of U.S. patent laws. Microsoft pays no royalties to AT&T on those copies of Windows.
That amounts to patent infringement, AT&T contends, since U.S. law prohibits companies from compiling component parts of a U.S. patented invention for assembly overseas to circumvent U.S. laws. Nothing, AT&T argues, is more essential to the operation of a personal computer than the Windows operating code.
At issue is whether Microsoft's master disk is a component part of the computers built overseas. Microsoft says no, since the master disk itself is not installed on any computers.
"What is patented?" asked Justice John Pau
