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Re: Software Patents


From: Alexander Terekhov
Subject: Re: Software Patents
Date: Thu, 21 Jun 2007 14:19:54 +0200

rjack wrote:
> 
> Lee Hollaar wrote:
> > In article <address@hidden> rjack
> > <address@hidden> writes:
> >> It appears that the term "software patent" is a term that has
> >> entered the World without benefit of the federal courts or
> >> Congress. A Google search (admittedly not exhaustive) reveals no
> >> published court opinion that incorporates the phrase "software
> >> patent". Especially telling is a search of published opinions of
> >> the Supreme Court and Federal Circuit's official opinions.
> >
> > Perhaps literally true, but only because Google is the wrong place to
> >  search.
> >
> > "Must a software patent disclose every potential coding variation
> > that performs a claimed function?"  University of Rochester v. G.D.
> > Searle, 375 F.3d 1303, 71 USPQ2d 1545 (dissent by Judge Rader).
> >
> > There are also some district court cases that use the term, and other
> >  cases that use variants of it, such as "patented software."
> >
> > But like many legal terms (such as "free speech"), the term is just a
> >  shorthand for a large number of cases setting imprecise boundaries.
> 
> 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
> information—a detailed set of instructions—and 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)."

regards,
alexander.


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