The case I'm speaking about is the Microsoft vs AT&T lawsuit that the U.S. Supreme Court is now considering. Some time ago Microsoft was found guilty of infringing an AT&T software patent for speech recognition. Whether Microsoft was actually guilty of stealing technology is, as we know, basically irrelevant in our patent system, so their appeal is based more on how and where this ruling might be applied. It's a done deal that it will be applied in the U.S., but what about products assembled overseas that contain an infringing software component?

The implications for the American software industry, and the American economy in general, are significant. As if we aren't already offshoring enough software development jobs, a ruling for AT&T could make it in every company's interest to be able to say the software components of their product were not made in the USA. As one chief justice said to AT&T's attorney during oral arguments, he is "quite frightened of deciding for you and discovering that all over the world there are vast numbers of inventions that really can be thought of in the same way that you're thinking of this one." Well, Your Honor, given the way software patents work, it is quite inevitable that there are indeed vast numbers of such inventions.

If Microsoft does win, the stated reason will probably be that the U.S. shouldn't try to apply our intellectual property laws elsewhere. But, as valuable a precedent as that might be, it really misses the point in this case. If software is a domain for patent law, rather than just for copyright, then AT&T should win. The reason Microsoft should win is that software should not be patentable -- anytime, anywhere, or any way. The Supreme Court probably won't justify its conclusion on those grounds, but it is the logical one given the facts of the case.

Now, I'm sure Microsoft would have been just as happy if the patent office and the courts hadn't ever decided that software patents are a good idea. It certainly seems to be a good idea for the patent office and the courts in terms of generating lots of application fees and courts cases. But it put a big target on Microsoft's back, as seen yet again yesterday with another patent award against them, this time for Lucent-Alcatel. But having had to play defense so much when it comes to patents, it will be interesting to see if Microsoft will be consistent to the arguments it's making in the AT&T case when it comes to Linux and other open source software. Hey, Redmond, we're all in your corner right now, but here's hoping you'll stay on our side as well.

What's your take? Post your comments below, write me at Foster@gripe2ed.com or phone the Gripe Line voice mail at 1 888 875-7916.