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Re: Jurisdiction Penumbra

From: Alexander Terekhov
Subject: Re: Jurisdiction Penumbra
Date: Mon, 30 Apr 2007 18:34:48 +0200

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.


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.


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

I agree with STEVENS, the logic of the majority sucks 

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