Supreme Court Debates Patentability of Software

Representing AT&T, Seth Waxman conceded that source code cannot be patentable; however, he argued, the manifestation of that source code as executable machine code or object code can be, and in this case, is. Justice Breyer was skeptical, however. Can't a machine be copied conceptually without its manifestation being copied?

Breyer presented a hypothetical case of a fellow, a genius, who examines an American machine very closely, returns home to Germany, and from his own eidetic memory, produces an exact duplicate. He memorized the concept, but he copied the machine...didn't he? What's the difference between the German genius copying the machine in Germany from memory, and copying it directly in the US and shipping it back home in a crate?

Waxman declined to address Breyer's hypotheticals, returning instead to the case at hand. "When you're talking about sending designs over or blueprints or management instructions or a high level version of, 'Gee, let's have a code that will perform the following functions,' and you have people design and make and compile and test and debug that code overseas, of course that component is the object code, the precise commands that reside in the computer and continually interact with the hardware of the computer," Waxman responded.

In a lofty interpretation of what happens over the Internet, Waxman described Microsoft's interpretation of the replication process as converting code to photons, zooming those photons really fast to a remote location, and having those photons re-emerge at the replication station, where the component of AT&T's argument is then replicated.

Justice Souter would not have the discussion divert into the patentability of photons. "Let's just take the master disk and forget the photon for the moment," he said. "The master disk functions like a blueprint. From the United States they send the blueprint to Europe. The blueprint is put in some kind of a machine in Europe. And by the use of the blueprint the machine puts electrical charges on a disk or on a hard drive, and that it seems to me does bear out the blueprint analogy. And if it does, then any export of a blueprint or indeed the simple export, the simple sending of the [patented item] in this case would be a violation."

After a heated discussion, Waxman attempted to explain Software 101 all over again. "Object code is the end of Microsoft's manufacturing process," he lectured the justices. "That is what they make. They don't make hard drives, they don't make disks, they don't make computers. They fully finish their product, the Windows operating code, and then send it overseas...The code is not patentable. The expression is copyrightable. AT&T has not sought to get a patent on the code. AT&T has a patent on a system that can be practiced, among other ways, through the use of software."

AT&T is willing to concede that software isn't patentable, if the Court will conclude that the things that software does - the methods and procedures and instructions that a processor carries out once software is installed - are patentable.

Microsoft might have been happier had the topic of discussion remained limited to foreign jurisdiction of copyright and patent. However, there's no law that states Microsoft's defense -- that source code can't be patented -- must apply either for or against Microsoft in future cases before the Supreme Court.