Bonum Certa Men Certa

The Supreme Court Gets Another Chance to Kill Software Patents in the United States

John Paul Stevens, SCOTUS photo - portrait



Summary: North American patents on software are at stake again, but Microsoft is unlikely to let them burst into flames

JOHN PAUL STEVENS (ABOVE) RETIRED after ruling along with his colleagues in the Bilski case. An opportunity to kill software patents was essentially lost (depending on whose interpretation of the case is embraced.)



The law in the United States matters a lot at least as a precedence, for reasons that Wikileaks helps show this month (more on that later). We'll cover software patents in Europe in a subsequent post because there is a lot of ugly stuff going on there, notably cronyism and lobbying from Microsoft. This post too is going to focus on Microsoft because VirnetX, which Microsoft paid a lot of money [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15], "Receives European Security Patent" based on this new press release. This must be a software patent and VirnetX is a known patent troll/parasite/agitator. Europe needs to get rid of such an abomination, which first thrives in the United States and then tries to wrap its tentacles around companies overseas.

The patentability of software patents is pushed into the Supreme Court again, as some expected (we wrote about it several times this year). Joe Mullin, one of the better writers in this area, says that "Microsoft’s Supreme Court Case May Have Huge Benefits For Patent Defendants" and it's important to remember the context.

The high court announced today that it will hear a patent challenge by Microsoft, which is seeking to overturn a big loss to i4i, a small Canadian company. After a jury trial in East Texas, i4i won $200 million and an injunction that required Microsoft to disable the XML editing function in its ubiquitous Microsoft Word program.


"Supreme Court Will Review The Standard For Patent Infringement: Could Raise The Bar," argues Mike Masnick and here is the corresponding Slashdot discussion which could cite just about any among many articles like [1, 2, 3, 4, 5, 6]. Associated Press clarifies that SCOTUS is about "to review patent judgment against Microsoft", so it's not as though Microsoft is trying to fix the patent system. It's just acting selfishly, so support from the EFF [via] is no indication of Microsoft being "good" or anything like that. Those who are familiar with the i4i case would know about trial misconduct from Microsoft and deliberate infringement which followed a form of spying from within i4i. Microsoft's behaviour towards i4i has been despicable and the only reason it's pursued this far is that Microsoft Word is at risk of being banned in north America. Microsoft cannot afford a ban on its #1 cash cow. Here is how Bloomberg puts it:

The U.S. Supreme Court will consider making some patents more vulnerable to legal challenge, agreeing to hear Microsoft Corp.’s appeal in a case that forced changes in the company’s Word software and may cost it $300 million.


Under the assumption that SCOTUS can invalidate all/many software patents here, Glyn Moody says he is "Rooting for Microsoft". To quote him: "Although I'd prefer the entire system to be swept away at a stroke, I think that is somewhat unlikely, so I may have to settle for progressive improvements. And given the general inability of politicians to free themselves from the well-paid lobbyists in this area, the most promising avenue for change is probably that the companies most affected by software patents should do something about it through the courts."

Katherine Noyes from IDG is the lady who covered it for PCWorld. How will Elena Kagan (below) rule/vote on the subject? Nobody knows for sure yet. Perhaps women will show that they can assess the economic impact of patents better than men can. Ginsburg had not been as involved as her male colleagues the last time around and then she retired (her husband died around the very same time the Bilski decision arrived). Laws are not absolute; they are theoretically made by people (or corporations in most cases) to fit society's needs, so taking modernisation into consideration, laws must evolve over time. Will the United States come into alignment with the rest of the world by eliminating software patents or can it still afford to use diplomatic blackmail to assimilate others (more on that later)?

Elena Kagan

Recent Techrights' Posts

Software Freedom Day Celebrated in 5 or 6 Continent
Software Freedom Day (SFD) 2026 was big this year
Enjoy the Giving/Sharing, Not Taking
We've long supported what we believed in, even with the little money we had
 
2026: The Year Galleries Realised the Need to Flag or Cull Slop Images
Society needs to shun slopfarms, people who use LLM slop (for anything at all), companies that use bots (which they dub "agents"), and so-called 'coders' who volley garbage into project and software hubs
Linux Kernel Becoming a Slopfest - Part 6 - Seeing Who Contaminates Linux With Slop (And Also Admits It)
Today we begin looking at some culprits
SLAPP Censorship - Part 191 Out of 200: Garrett, Graveley and Lozza
They talk to and coordinate with one another
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 20, 2026
IRC logs for Sunday, September 20, 2026
Gemini Links 21/09/2026: Digital Hoarder, GTD, Minimalism vs Digital Minimalism, Rejection of LLMs
Links for the day
Links 20/09/2026: "Google Now Asking For Users’ Video Selfies" and Energy Prices Set to Rise
Links for the day
Links 20/09/2026: Amazon Layoffs, Flock 'Buyouts' (Silent Layoffs)
Links for the day
USCIS and Microsoft Rumours: Curbs on Lowering Salaries by Importing Cheaper Replacements?
It seems like Microsoft's mass layoffs and efforts to cheapen the workforce face obstacles
Gemini Links 20/09/2026: "Music While Working" and Radio Silence
Links for the day
Clownflare Data From Canada
We've like to think many people are attempting to install GNU/Linux over the weekend
SLAPP Censorship - Part 190 Out of 200: Plagiarism, Back Doors, and Sabotage of Linux
This can go on for a decade or longer
Linux Kernel Becoming a Slopfest - Part 5 - Kernel Dependency on Plagiarism Giant Microsoft is a Death Blow to Any Kernel
Microsoft is bringing copyright-infringing slop into Linux
GNU/Linux Has Grown a Lot Lately
Based on Clownflare
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 19, 2026
IRC logs for Saturday, September 19, 2026
Links 19/09/2026: Many Patents Become Candidates for Annulment and Linux [sic] Foundation Takes More Slop Money to Promote Malicious Bots
Links for the day
Gemini Links 19/09/2026: The Fundamental Human Assets, The History of Gopher's "i" Type, and ROOPHLOCH 2026
Links for the day
Links 19/09/2026: "OpenAI and Microsoft Knew They Were Starting a ‘Doom Loop’ [of Mass Plagiarism 'Normalised' by Brute Force] for the web", Calling It "Hey Hi"
Links for the day
8 Series Going on at the Moment in Techrights
4 series about SLAPPs and related matters
Linux Kernel Becoming a Slopfest - Part 4 - Outsourcing to Microsoft, Approaching 10 Gigabytes
Can we blame Microsoft for those DDoS attacks? Partly.
SLAPP Censorship - Part 189 Out of 200: A Terrible Idea to Condemn Projects for Using Slop 'Code' When Your Own Employer Does This (and Profits From Every Company Doing So) or to Call Distros 'Not Secure' While You Advance Back Doors
"I don’t want a back door. I want a front door."
Software Freedom Day 2026 is Today, Week-long Celebration in Brazil
In Brazil, Clownflare reckons about 1 in 20 laptops/desktops might use GNU/Linux already
Red Hat Lost 2,000 Staff (Net Loss)
Maybe by year's end it'll be a 20% reduction
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 18, 2026
IRC logs for Friday, September 18, 2026