Last week an advocacy group that champions the use of free and open source software, including the Linux operating system, asked the U.S. Supreme Court to invalidate all software patents.

The request was made by the Software Freedom Law Center in an amicus brief submitted in the case known as Microsoft v. AT&T, which is scheduled for argument Feb. 21. It is unlikely that the Court would take the advocacy group up on its invitation, if for no other reason than the Court has only asked the parties to brief narrower questions presented by the case, which focuses on the degree to which a U.S. software patent can be enforced abroad. Still, the center, which aims to provide legal peace of mind to developers and users of open-source software, is putting the lightening-rod issue on the Court's radar screen and hoping the Court will craft its ruling in a way that tees up the broader issue for future resolution.

One of the greatest threats to the acceptance of open source software by major corporate customers is the so-called FUD factor--the "fear, uncertainty, and doubt" that arises (justifiably or not) from the concern that patented proprietary software code might have found its way into the open source software at some stage, exposing the customer to liability for patent infringement. Because open source software is created through a decentralized process, with hundreds of individual developers making contributions, it is hard to guarantee against such an occurrence. If the SFLC could ever succeed in having the Supreme Court invalidate all software patents in one fell swoop, its mission would largely be complete.

The goal is not as pie-in-the-sky as it might sound. For many years the consensus assumption in the legal community was, indeed, that software, because it is just a set of instructions readable by a compatible machine, could not be patented without impermissibly carving out of the public domain fundamental laws of nature, abstract ideas, or mathematical algorithms, which the Supreme Court has previously declared to be off limits to patenting. That view was gradually reversed by a series of rulings in the 1990s by the U.S. Court of Appeals for the Federal Circuit, a special appellate court set up in the 1980s to handle patent cases, among others. But Daniel Ravicher, the legal director of the Software Freedom Law Center, argues in the group's brief that these Federal Circuit rulings are inconsistent with the earlier U.S. Supreme Court precedents in the area. He asks that they at long last be examined by the the High Court--and overruled.

The SFLC seeks to ride a legal wave of sorts. The Supreme Court now appears to be cutting back on years of expansive rulings by the Federal Circuit, which many perceive as having inappropriately maximized the rights of patent-holders vis-a-vis accused infringers. Last term, in the eBay v. MercExchange case, the Court struck down one such pro-patent-holder rule that the Federal Circuit had devised, and this term, in the recently argued KSR International v. Teleflex case, the Court is widely expected to pare back another. (For an earlier Legalpad entry on the KSR case, click here.)

The Microsoft v. AT&T dispute concerns a law that was passed in 1984 to plug a loophole that originally had nothing to do with software. The law focused on banning the practice whereby some U.S. manufacturers were effectively doing end runs around other people's U.S. patents by manufacturing the components of infringing inventions here in the U.S., but then shipping the components overseas for final assembly. The statute deemed such conduct to be infringing, so long as any "component" of the invention was being "supplied" from the U.S.

In this case, Microsoft (MSFT) has admitted that certain software in its Windows operating system violates an AT&T (T) patent relating to the digital coding and decoding of human speech. Though Microsoft concedes it must pay royalties for copies of Windows sold in this country, the question is whether it must also pay AT&T for copies of Windows that are installed on computers that are manufactured and sold abroad. In those situations, Microsoft loads a copy of Windows onto a "golden master disk," and sends that abroad. There, licensed "replicators" make a first-generation copy of Windows from the golden master disk. Then that first-generation copy is "installed" onto foreign manufactured computers--i.e., it is copied again. So, argues Microsoft, it's not infringing AT&T's U.S. patent for two reasons: (1) no molecule of anything that winds up in overseas computers is being "supplied" from the United States; and (2) software is not a "component" of a patented invention within the meaning of the 1984 law. Ravicher hopes to import his contentions onto the second prong of Microsoft's argument. He would like the Court to say: Right, software can't be a "component" of a patented invention because it's not patent-eligible to begin with.

The amicus briefs from the various groups who support either prong of Microsoft's position were filed on December 15. The most influential brief among them is clearly that of the United States (which represents the views of both the U.S. Patent and Trademark Office and the Justice Department), but the Business Software Alliance, the Software and Information Industry Association, Intel (INTC), Amazon (AMZN), Yahoo! (YHOO), and Autodesk (ADSK) have all weighed in on Microsoft's side as well. Amicus briefs on AT&T's side have not yet reached the deadline for filing, so we do not yet know who they will include. The best in-depth discussion (with links) I have seen of the Microsoft v. AT&T case is at the Patently-O blog, where the specific discussion is here.