Bonum Certa Men Certa

Microsoft Sued for Patent Violations and Monday Seems Likely to End Stupid Patents

John Paul Stevens, SCOTUS photo - portrait
John Paul Stevens, SCOTUS

Summary: Salesforce sues Microsoft in exchange for Microsoft's frivolous lawsuit; The Patently-O crowd says that Justice John Paul Stevens, whose track record is hostile towards software patents, is the one writing the Bilski decision for SCOTUS (Supreme Court of the United States)

Microsoft, which struggles online where it loses almost $3 billion per year, sues those who succeed online. Microsoft decided to attack Salesforce using software patents [1, 2, 3, 4], only to be sued in return.



Salesforce.com Inc. filed a patent- infringement lawsuit today against Microsoft Corp., escalating a fight between the two companies over the growing market for cloud-computing software.


Salesforce enlists David Boies (from the famous Microsoft antitrust case) to show that racketeering [1, 2, 3, 4, 5, 6, 7] won't work. This was promptly covered in:



"Software patent wars are crazy," remarked one of our readers about it, "but only the lawyers like them. Well maybe Judges as well, as Judges were lawyers first before becoming Judges."

Speaking of judges, Justice John Paul Stevens is believed to be writing the SCOTUS Bilski decision just before his retirement [1, 2, 3].

"Widespread agreement that Justice Stevens is writing the Court’s opinion in Bilski," writes the president of the FFII regarding this new post from Patently-O:

It remains a puzzle why the petitioners in this case are persisting in an appeal that seems not only doomed but also capable of establishing new and unpredictable restrictions to the scope of patentable subject matter. I had previously thought that “irrational exuberance” provided the best answer—that the Bilski petitioners were likely to remain unrealistically optimistic about their chances for success right up to the end. But the presence of a multibillion-dollar corporation controlling the litigation decreases the chances that the strategy is due to simple inventor over-optimism. Perhaps the entity controlling the petitioners’ side of the case is really quite wily, for there would be no cause to “fold ’em,” if the petitioners’ side would view thorough defeat as victory. That would explain much.


"Patently-O afraid of Justice Stevens," says Florian Müller, who tells us that the above is "the best and most encouraging article on Bilski I've seen to date." Robert Pogson writes about the subject as well:

One of the side-effects of waiting breathlessly for Bilski at SCOTUS is seeing other things that the supremes decide.

A recent opinion slaps down rulings made by lower courts over decades that US securities fraud laws applied globally. There is so much assumption in the culture of the USA that the world should do things the way they do them: film, politics, copyright, software patents…


Müller's take on the OIN withstanding [1, 2, 3], if software patent are annulled in the United States and later throughout the rest of the world (it's possible, as traditional slavery too has become extinct), then the OIN becomes utterly redundant and can then be dismantled. For now, however, it continues to grow under the assumption that software patents hold water in the United States.

Our prediction is that the Bilski decision will stand after the assessment by SCOTUS; then, lawyers will try to interpret it as though it makes little difference, even when it successfully kills a few software patents. Monday may be a legal turning point for GNU/Linux and software freedom (whether one cares about the field of law or not). We will try to make an HTML version of the ruling as soon as it comes out (as we did the last time).

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