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A report on Microsoft v. AT&T Supreme Court Hearing
Wednesday, February 21 2007 @ 03:48 PM EST

A Groklaw reader attended the hearing at the Supreme Court regarding Microsoft v. AT&T patent case and was so nice to send us a report of the hearing. Enjoy -- Mathfox

**********

This morning the U.S. Supreme Court heard oral arguments in Microsoft v. AT&T. This is a patent case in which Microsoft has raised two questions in an appeal from a decision of the U.S. Court of Appeals for the Federal Circuit.



In its decision, the Court of Appeals cited an earlier decision in Eolas v. Microsoft in finding that "[w]ithout question, software code alone qualfies as an invention eligible for patenting." (page 3) Neither Microsoft nor AT&T has directly challenged this finding, although it is probably implicit in the first of the two questions presented:

(1) Whether digital software code--an intangible sequence of "1's" and "0's"--may be considered a "component[] of a patented invention" within the meaning of Section 271(f)(1).

As the Software Freedom Law Center has argued in its brief amicus curiae, this finding of "software patentability" would appear to be in conflict with earlier Supreme Court decisions, leading to the possibility that the court might address this matter--potentially leading to the elimination of software patents. Other briefs available on line are Microsoft, AT&T, and the Solicitor General.

I attended this morning's hearing to find out if the question of "software patentability" would be address in the arguments, or more importantly, in the questions from the justices. Chief Justice Roberts opened the session at 10:00am. He introduced guests from the EU, and presided while two opinions were read and over the admission of several lawyers to the Supreme Court Bar. He then left the chamber and Justice Stevens presided over the oral arguments in Microsoft v. AT&T. Ted Olson, former Solicitor General, argued for Microsoft for about 16 minutes, Daryl Joseffer, assistant to the Solicitor General argued for 10 minutes, supporting Microsoft. Seth Waxman argued for AT&T for 30 minutes and then Ted Olson used the remaining 4 minutes to close. The Justices asked many questions, sometimes rather pointed, and usually on point--I think they understand at least some of the issues. The transcript of the arguments is now available here I believe Justice Breyer first raised the question of software patents, and pointed out that the Supreme Court has never agreed that that software can be patented (page 22, line 6)--as FSF pointed out in its brief. The issue came up several more times. What I found most interesting was that both the Mr. Joseffer (page 27, line 17) and Mr. Waxman (page 29, line 10 and page 38, line 25) said that software is not patentable. By directly contradicting the Court of Appeals on the this matter, I wonder if AT&T hasn't seriously undermined its case.

Attending a Supreme Court hearing is an interesting experience, particularly if you have read the questions presented and the merits briefs and understand the issues. If you want to assured of getting in, get there early and be prepared to wait in line--outdoors, rain or shine--for 2 or 3 hours. I found the Visitor's Guide to be quite helpful.


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