The big news in patent law this week is the Supreme Court oral argument in Microsoft v. AT&T. Microsoft exports software from the United States to various countries. The software code alone cannot infringe AT&T's patents until it is combined with the hardware, which only occurs after the software has left the United States. So, exporting the software is not an act of infringement. The issue, therefore, is whether, pursuant to 35 U.S.C. Section 271(f), exporting the software constitutes:
suppl[y] . . . from the United States . . . [of] all or a substantial portion of the components of a patented invention . . . in such manner as to actively induce the combination of such components outside of the United States,” as well as the “suppl[y] . . . from the United States [of] any component of a patented invention that is especially made or especially adapted for use in the invention.
For more on the issues, you can find the briefs at Patently-O.
The case has received substantial media attention both because it was granted cert and because the case could have effects far beyond the international exportation of software. The oral arguments were interesting (transcript here) and both the main stream media and blogs are frantically reading the tea leaves.
My favorite oral argument quotes both came from Justice Scalia:
JUSTICE SCALIA: Mr. Olson, before you get into the merits I have a question, a preliminary question. I understand from AT&T's brief that there has been a stipulation entered into between the parties after the judgment below which preserved Microsoft's right to appeal and prescribed different dollar amounts that Microsoft must pay AT&T depending on the outcome of the appeal. Does that raise any, any muteness problem? Can you sort of wager on the outcome of an appeal that way?
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JUSTICE SCALIA: I hope we can continue calling it the golden disk. It has a certain Scheherazade quality that really adds a lot of interest to this case.
(Laughter.)
For more on the oral arguments and analysis of the case generally, check out:
Patently-O -- Discussion of the oral argument and quotes from the transcript.
The BLT (Blog of the Legal Times)* -- Coverage of Solicitor General Ted Olson accidentally referring to Justice Stevens (a former Chicagoan) as Justice Scalia and Chief Justice Roberts recusing himself based upon his stock holdings.
The WSJ Law Blog -- Focusing on Justice Breyer's statement to AT&T: "I don’t see how to decide for you.”
The WSJ print story (subscription required) -- A broader overview of the story, including a discussion of the fact that the Supreme Court has never held that software is patentable.
271 Patent Blog -- Focusing on the "metaphysical" aspects of the case with extensive quotes from the oral argument.
IP Kat -- A pre-argument case detailing the parties' arguments.
* This is a new blog that is well worth checking out and adding to your RSS feeds.
