Alexander Terekhov wrote: [...] > > > > > > > http://www.patentlyo.com/patent/MSFT.Vandenberg.pdf > > > > > > > > > > > > http://www.patentlyo.com/patent/MSFT.Shell.pdf > > > > > > > > > > > > "Simply put, software is not a process ... but merely represents a > > > > > > processs", says Shell. > > > > > > > > > > What Shell wants is this: > > > > > > > > > > <quote> > > > > > > > > > > Based on an inapplicable general definition of "component", the United > > > > > States argues that "the software copy that is actually loaded onto > > > > > computer is a part, element, or ingredient of the patented invention." > > > > > U.S. Brief, at 8. However, that too is overbroad and reflects inexact > > > > > terminology. If the "patented invention" in question is a claimed > > > > > product of system, the specific copy of the software that is loaded on > > > > > the computer may be a "component" of the patented invention. However, > > > > > for the reasons stated, if the "patented invention" at issue is a > > > > > process or method, the software even as loaded on a computer structure > > > > > is still not part of the patented process, but merely a material or > > > > > apparatus for use in practicing the process and hence not a > > > > > "component" > > > > > at all. > > > > > > > > > > ... > > > > > > > > > > If software can be a "component" but only when it is represented in > > > > > tangible form, then such component cannot be divorced from the > > > > > particular physical media on which it is embodied. In that case, the > > > > > only components "supplied" by Microsoft in or from the United States > > > > > are > > > > > its golden master disks which are never combined with anything outside > > > > > the United States in a manner that would infringed Respondent's > > > > > asserted > > > > > product or system claims. > > > > > > > > > > </quote> > > > > > > > > > > U.S. Brief: > > > > > > > > > > http://www.patentlyo.com/patent/MSFT.DOJ.pdf > > > > > > > > Intel is profoundly concerned with subsequent generations. > > > > > > > > http://www.patentlyo.com/patent/MSFT.Intel.pdf > > > > > > > > <quote> > > > > > > > > The plain language of 35 U.S.C. § 271(f) is limited to the "suppl[y]" > > > > from this country of "components" where "such components" themselves are > > > > intended to be incorporated abroad into a combination claimed in a U.S. > > > > patent. As the Federal Circuit and AT&T have recognized, Section 271(f) > > > > does not cover the exportation of design tools or design information > > > > such as templates, masks, molds and prototypes, and it does not impose > > > > liability merely for facilitating foreign combinations. Exportation of > > > > master versions of program code cannot infringe because master versions > > > > are designed to be templates for making additional copies, and only > > > > subsequent generation copies are incorporated into computer system > > > > combinations that could practice AT&T's invention. > > > > > > > > The Federal Circuit's overbroad construction flowed from its mistake in > > > > construing "component" and "supplied" sequentially and in isolation, > > > > rather than in tandem and in conjunction with the requirement of a > > > > "combination". The only "components" that matter are those "supplied" > > > > from this country that become part of a "combination," and the only > > > > "supply" that matters is of items that themselves become "components" of > > > > the patented "combination". Regardless of whether other forms of > > > > software may qualify as a "component" of a patented invention, the > > > > master versions at issue here cannot violate Section 271(f) because they > > > > themselves are not and are not intended to be combined into computer > > > > systems that practice AT&T's patent. > > > > > > > > The Federal Circuit extended liability to foreignmade copies by > > > > reasoning that "copying is subsumed in the act of supplying" the master > > > > versions. That assumption runs counter to two fundamental principles of > > > > intellectual property law. First, designs and concepts are distinct from > > > > their physical embodiments. Microsoft's product designs for its Windows® > > > > operating system are thus distinct from the disks or files that embody > > > > them. Second, original works are distinct from later copies, which in > > > > turn are distinct from other copies of the same work. The master files > > > > cannot be conflated with foreign-made copies. > > > > > > > > </quote> > > > > > > Autodesk contends that "it is the intangible instructions from the > > > golden master that produce the disk that is ultimately combined outside > > > the United States." Matrix Reloaded. > > > > > > http://www.patentlyo.com/patent/MSFT.Autodesk.pdf > > > > > > <quote> > > > > > > The Federal Circuit majority here brushed Pellegrini aside by noting > > > that it involved export of instructions for making a component, but not > > > the component itself. AT&T, 414 F.3d at 1370. But because of the > > > majoritys non-discriminating view of "software," it failed to recognize > > > that it is the intangible instructions from the golden master that > > > produce the disk that is ultimately combined outside the United States, > > > and not the tangible golden master itself. In short, the court's > > > distinction over Pellegrini was wholly circular and was tied to its > > > misuse of the term "software." > > > > > > </quote> > > > > > > > Respect to BSA. At least they say what's really at issue here. > > > > http://www.patentlyo.com/patent/MSFT.BSA.pdf > > > > <quote> > > > > To appreciate the competitive, economic and legal import of the > > decision below, one need only to recognize that this dispute is not > > between a domestic inventor and a foreign infringer. Rather, it is > > between two inventors based in the United States. One inventor, the > > Petitioner, had shipped a copy of its invention overseas. The other > > inventor, the Respondent, could apply for and prosecute a foreign > > patent for its innovation. There is no United States liability for > > foreign actions, whether the invention is used or not. > > > > The holding that the shipment of one golden master disk could lead to > > multiple acts of infringement, based on the softwares replication > > abroad, subjects software companies to indefinite and unpredictable > > worldwide liability, irrespective of the companies ability to control > > the overseas copying. > > > > [...] > > > > The indefinite liability established by the lower courts opinion for > > inventive acts done in the United States, with no corresponding > > liability for foreign inventions, is likely to put at risk Americas > > inventive genius for software innovation. At a minimum, the decision > > negatively impacts United States software companies competitiveness > > with their foreign counterparts, who face no corresponding infringement > > liability. The risk of liability now faced by American companies, a > > risk not faced by their foreign competitors, will undoubtedly diminish > > any competitive advantage currently enjoyed by those developers in the > > United States. > > > > </quote> > > Here comes Yahoo: > > http://www.patentlyo.com/patent/MSFT.Yahoo.pdf > > <quote> > > First, while the golden master disks that Microsoft sometimes uses to > convey its software to foreign manufacturers received the lions share of > attention in the briefs filed at the petition stage, the Federal Circuits > decision expressly applies to electronic transmission as well. The Federal > Circuit specifically addressed Internet downloads, stating that when a > user downloads software from a server on the Internet, the server > supplies the software to the users computer by transmitting an exact > copy. Pet. App. 6a. The court went on to conclude that whether software > is sent abroad via electronic transmission or shipped abroad on a golden > master disk is a distinction without a difference for purposes of § 271(f) > liability. Id. at 8a. This Court should be aware that the rule announced > in this case could therefore extend United States patent liability to > every corner of the globe where a copy of software originally developed in > the United States is installed on end-user devices, regardless of how the > copy is created. > > We agree with the Federal Circuit that it should not matter whether > software installed abroad on computers is obtained from a master disk or > a download from the Internet. > > </quote> > > Ha! But the best part of Yahoo's brief is footnote 2! > > <quote> > > In the computer language C, the source code reads: > > #include <stdio.h> > > int main() > { > printf("Hello!\n"); > return 0; > } > > The first line indicates where the output is to be displayed, while the > rest of the code indicates what is to be displayed. The object code that > the computer would run, after the source code just listed were > compiled or translated, might read (in part): > > 10110101001011010 > 10100100100100010 > 10101001010101110 > 01010010010110101 > 11101010100111001 > 10101001010111110 > 10101101101001001 > 10101000111101011 > > </quote> > > Amazing, SCOTUS taking lesson on C programming!!! >
Switzerland-based international and non-political association of approximately 4,000 industrial property attorneys from over eighty countries (including the United States): http://www.patentlyo.com/patent/MSFT.FICPI.pdf Very hard to read (in tempo), but what I gather is that they want to have 271(f) get outlawed altogether. regards, alexander. -- "Boycott Exxon-Mobil" -- www.stallman.org _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
