...either that or they say whatever it takes to win.
From Supreme Court Moves Toward Hearing AT&T v. Microsoft Software Export Case, via Patently-O (boldness added):
In its petition, Microsoft asks two questions:
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); and, if so
2) Whether copies of such a "component" made in a foreign country are "supplie[d] . . . from the United States."
The petition attempts to show that the CAFC has gone astray by interpreting the statute in a manner "appropriate to the technology at issue" rather than according to its "plain meaning and legislative history" as required by Supreme Court precedent.
The petition also impliedly argues that software itself should not be patentable.
The decision below is premised on a commonly held misunderstanding of the nature, and thus the patentability, of software.
They argued the same thing in Eolas. It doesn't surprise me that they make arguments opposing software patents in contexts like this. But it doesn't square very well with their behavior in Europe.