Alexander Terekhov wrote: > > rjack wrote: > [...] > > > The CAFC should be reversed. > > Maybe. Well, but taking ideas from Switzerland (-based international and > non-political association of approximately 4,000 industrial property > attorneys from over eighty countries (including the United States)) and > Shell, either the SCOTUS should outlaw 271(f) altogether or affirm CAFC > ruling, "process or method" claiming notwithstanding. I think.
Majority: ------ Windows software does not infringe AT&T's patent any more than a computer standing alone does; instead, the patent is infringed only when a computer is loaded with Windows and is thereby rendered capable of performing as the patented speech processor. The question before us: Does Microsoft's liability extend to computers made in another country when loaded with Windows software copied abroad from a master disk or electronic transmission dispatched by Microsoft from the United States? Our answer is "No." The master disk or electronic transmission Microsoft sends from the United States is never installed on any of the foreign-made computers in question. Instead, copies made abroad are used for installation. Because Microsoft does not export from the United States the copies actually installed, it does not "suppl[y] . . . from the United States" "components" of the relevant computers, and therefore is not liable under §271(f) as currently written. Plausible arguments can be made for and against extending §271(f) to the conduct charged in this case as infringing AT&T's patent. Recognizing that §271(f) is an exception to the general rule that our patent law does not apply extraterritorially, we resist giving the language in which Congress cast §271(f) an expansive interpretation. Our decision leaves to Congress' informed judgment any adjustment of §271(f) it deems necessary or proper. ------ STEVENS: ------ The relevant component in this case is not a physical item like a knife. Both Microsoft and the Court think that means it cannot be a "component." See ante, at 10. But if a disk with software inscribed on it is a "component," I find it difficult to understand why the most important ingredient of that component is not also a component. Indeed, the master disk is the functional equivalent of a warehouse of components -- components that Microsoft fully expects to be incorporated into foreign-manufactured computers. Put somewhat differently: On the Court's view, Microsoft could be liable under §271(f) only if it sends individual copies of its software directly from the United States with the intent that each copy would be incorporated into a separate infringing computer. But it seems to me that an indirect transmission via a master disk warehouse is likewise covered by §271(f). I disagree with the Court's suggestion that because software is analogous to an abstract set of instructions, it cannot be regarded as a "component" within the meaning of §271(f). See ante, at 9-10. Whether attached or detached from any medium, software plainly satisfies the dictionary definition of that word. See ante, at 9, n. 11 (observing that "'[c]omponent' is commonly defined as 'a constituent part,' 'element,' or 'ingredient'"). And unlike a blueprint that merely instructs a user how to do something, software actually causes infringing conduct to occur. It is more like a roller that causes a player piano to produce sound than sheet music that tells a pianist what to do. Moreover, it is surely not "a staple article or commodity of commerce suitable for substantial noninfringing use" as that term is used in §271(f)(2). On the contrary, its sole intended use is an infringing use. I would therefore affirm the judgment of the Court of Appeals. ------ I agree with STEVENS, the logic of the majority sucks miserably. regards, alexander. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
