Re: SFLC: "a penumbra"

[Alexander Terekhov]

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
> > > 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."
> > >
> > > </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 software’s 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 court’s opinion for
> > inventive acts done in the United States, with no corresponding
> > liability for foreign inventions, is likely to put at risk America’s
> > 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 lion’s share of
> attention in the briefs filed at the petition stage, the Federal Circuit’s
> 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 user’s 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"

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