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Re: SFLC: "a penumbra"

From: Alexander Terekhov
Subject: Re: SFLC: "a penumbra"
Date: Tue, 19 Dec 2006 11:29:55 +0100

Alexander Terekhov wrote:
> Alexander Terekhov wrote:
> >
> > Alexander Terekhov wrote:
> > [...]
> > >
> >
> >
> >
> > "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:

Intel is profoundly concerned with subsequent generations.


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.


Man, it's real fun to be a lawyer, I gather.

"Boycott Exxon-Mobil"


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