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Re: Software Patents
From: |
Lee Hollaar |
Subject: |
Re: Software Patents |
Date: |
Thu, 21 Jun 2007 08:28:12 -0600 (MDT) |
In article <467A6CEA.39414487@web.de> terekhov@web.de writes:
>
>rjack wrote:
>> The Federal Circuit took it upon itself to decide new law when it declared:
>>
>> "The first question, i.e., whether software may be a component of a
>> patented invention under § 271(f), was answered in the affirmative in
>> Eolas Techs. Inc. v. Microsoft Corp., 399 F.3d 1325 (Fed. Cir. 2005),
>> which issued while the instant appeal was pending. In that case, we held
>> that [w]ithout question, software code alone qualifies as an invention
>> eligible for patenting, and that the statutory language did not
>> limit section 271(f) to patented machines or patented physical
>> structures, such that software could very well be a component of a
>> patented invention for the purposes of § 271(f)."; AT&T v. Microsoft,
>> 414 F.3d 1366 (Fed. Cir. 2005).
>>
>> The Supreme Court in review of that case held:
>>
>> "Abstract software code is an idea without physical embodiment, and as
>> such, it does not match §271(f)s categorization: components amenable
>> to combination. Windows abstracted from a tangible copy no doubt is
>> informationa detailed set of instructionsand thus might be compared to
>> a blueprint (or anything else containing design information). A
>
>By their retarded logic (i.e. Windows, apart from material objects on
>which it is stored, is merely a blueprint (or anything else containing
>design information), §271(f) MUST cover exported copies (material
>objects) of blueprints (or anything else containing design information)
>since they held that "[i]n sum, a copy of Windows, not Windows in the
>abstract, qualifies as a component under §271(f)."
With respect to the Supreme Court's opinion in Microsoft v. AT&T, the
amazing thing is that neither the parties, nor the Federal Circuit
in the opinion below, nor the Supreme Court addressed what seems to
be a fundimental question -- A component of what? In other words,
what was actually claimed to be the invention.
As I noted in "The Form of a Software Claim Makes a Big Difference,"
http://digital-law-online.info/papers/lah/PTCJclaims.pdf (BNA PTCJ.
Vol. 73, No. 1795, 11/17/2006), if we are considering a Beauregard-type
claim the software should be a component -- perhaps the most important
one.
The patent (5,838,906) considered by the Federal Circuit
in Eolas Technologies v. Microsoft, 399 F.3d 1325,
73 USPQ2d 1782 (Fed. Cir. 2005) (69 PTCJ 471,
3/11/05), claims its invention as both a method and as a
computer program product. In particular, its media
claims are:
A computer program product . . ., the computer program
product comprising:
a computer usable medium having computer readable
program code physically embodied therein, said
computer program product further comprising: computer
readable program code for [performing the
steps of the method].
In other words, the claimed invention is some computer
usable medium and particular program code
stored on the medium. It should be clear that the digital
software code is a component of the claimed computer
program product.
The claim specifically recites computer readable
program code that is stored in the medium. In fact, it
is the code that is the only component of the claimed
computer program product that has any unique characteristic.
The combining of this code with some conventional
computer medium makes the claimed invention,
an act that would be infringement if done in the
United States.
I go on to note that the AT&T patent was granted pre-Beauregard and
therefore doesn't have article of manufacture claims, but it does have
appratus claims, and a similar analysis may apply.
It amazed me at oral arguments that AT&T did not address the claims
and there were no questions from the Court asked what the claimed
invention actually was.
- Re: Software Patents, (continued)
- Re: Software Patents, Bruce Lewis, 2007/06/20
- Re: Software Patents, Lee Hollaar, 2007/06/19
- Re: Software Patents, Bruce Lewis, 2007/06/20
- Re: Software Patents, rjack, 2007/06/20
- Re: Software Patents, Lee Hollaar, 2007/06/20
- Re: Software Patents, rjack, 2007/06/20
- Re: Software Patents, Alexander Terekhov, 2007/06/21
- Re: Software Patents, rjack, 2007/06/21
- Re: Software Patents, Lee Hollaar, 2007/06/21
- Re: Software Patents, dt, 2007/06/21
- Re: Software Patents,
Lee Hollaar <=
- Re: Software Patents, rjack, 2007/06/21
- Re: Software Patents, Lee Hollaar, 2007/06/21
Re: Software Patents, dt, 2007/06/20