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!!!

regards,
alexander.

--
"Boycott Exxon-Mobil"

 -- www.stallman.org