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Re: SFLC: "a penumbra"

From: Alexander Terekhov
Subject: Re: SFLC: "a penumbra"
Date: Tue, 19 Dec 2006 11:48:50 +0100

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.
> <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.


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 
majority’s 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."


Man oh man.


"Boycott Exxon-Mobil"


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