originally: Feb. 26, 2010
and the unsettling trend of
corporations paying microsoft
to use FOSS-protected linux
led to considering the dual supreme court rulingson patents in April of 2007, both rejecting claims of infringement.
microsoft vs. att
ksr vs. teleflex
While I would like to support restricted patent validity,
insofar as claims of patents promoting innovation seem oblivious
to the blatant ways in which they necessarily discourage it,
the ruling in the case of AT&T’s speech software patent
is shocking in its apparent radical implications.
| 1. “(master)copies” aren’t “components”, and thus continue to circumvent the congressional attempt, 271(f), to prevent American corporations from circumventing American patent law, by simply moving patent-infringing assembly abroad. |
| 2. Infringement occurs at the “object code” stage, not at the “source code” stage. |
| 3. btw, American patent law has no jurisdiction in foreign countries (even for 2 American companies). |
Microsoft admits that its code, installed on American computers, violates AT&T’s speech technology patents in the US, and has accepted its responsibility to pay damages for this distribution in the US, but not for any distribution of its infringing products abroad.
Generally, AT&T could not collect for foreign infringements in an American court, but 35 U. S. C. sec. 271(f), specifically provides that infringement does occur when a US company provides a patented invention’s components for “combination” abroad. Remarkably, Microsoft successfully argued that its software was not a component that combined with hardware to result in a product that violated AT&T’s patented speech technology (though it did if it was combined in the US?).
If Microsoft selling their infringing product to some unregulated market, doesn’t infringe on AT&T’s patent, then does anybody selling that product infringe on any of Microsoft’s patents?
I wonder what markets, if any, Microsoft products aren’t protected in.
I also wonder why AT&T can’t acquire acknowledgment of its pre-existing (American) patent, in whatever relevant international markets. (In other words, what are the conventions for international acknowledgment of whatever patent protections?)
But if copies simply aren’t components, that it hardly even seems to matter the jurisdiction, for whoever ships them anywhere, or sells them to anyone.
Then the infringement should only adhere to the installer of software, who is only subject to his home jurisdiction. (So is Microsoft just telling AT&T to go chase after all its customers?)
It may be obvious that i’m more than a lil confused,
how the justices intended all these disparate issues to interrelate,
in that the questions of components, combination, assembly,
and the scope of American law are tangled issues that
conspire together to evade any legal relevance.
In any case, it is not a little surprising to see a corporation like Microsoft
actually undermining patent validity on technicalities at the intersection
of metaphysical identity and source or target jurisdictions,
which in fact teeter towards remarkably
sweeping redefinitions of all software as fundamentally unpatentable.
(on the other hand, what alternative implications arise from
the additional option of application of copyright protections?)
the other case provides a refreshing application
of the “obviousness” invalidation,
and is also striking in its far more detailed attention
to mechanical particulars,
perhaps leading one to again wonder
whether the analogy of a blueprint in the software ruling
may have not derived from an overly superficial understanding
of the kinds of new mediums that technology is providing.
To clarify my own position (sort of),
it seems to me that Microsoft sells components
intended for assembly of a patented invention,
and thus 271(f) should apply,
but if they are correct that software infringement
applies to the assembler instead of the provider,
then shouldn’t that also apply domestically,
thus implying that file-sharing (at least of certain types)
doesn’t break any laws, though file ‘using’ could?
Then again, that apparently wouldn’t do much
for us would-be end-users, since it would seem to place
all the blame on us.
Thus it seems still too much to hope for,
that this really could be a situation
of the court’s understanding a more fundamental social good
of natural laws being beyond legal restraint,
and information flowing as freely as possible.
addendum 1:
Perhaps I’m missing the forest for the trees but doesn’t TRIPS provide for WTO member nations protecting each other’s patents and copyrights?
Does that mean ATT should have petitioned the WTO for compensation, or still just that ATT would have a case in other WTO countries to have their American patent upheld? I suppose it doesn’t mean that American judges can rule against violations in other countries?
question 1:
is there something about the difference of technology and art that justifies patents lasting for approximately 20 years while copyrights last perhaps 70 years after the death of the author?
question 2:
is that difference belied by the fact that computer programs are protected under copyrights?
question 3:
what are “algorithms” protected under?
crazy crowds 