Supreme Court Skeptical That US Patent Control Expands Beyond US Borders

from the try-that-again,-please dept

Late last year, the Supreme Court agreed to hear yet another patent lawsuit, this one involving Microsoft and AT&T. It wasn’t a huge surprise that they agreed to hear it, as they had asked for the administration’s thoughts on it earlier. At issue isn’t whether or not a patent was violated. Microsoft has already admitted that it violated AT&T patents. The issue concerned the scope of the damages, and whether or not Microsoft was also liable for the copies of the software that were installed overseas. Since the patent is just for the US market, Microsoft contends that software outside the US should not be included in the settlement. AT&T, obviously, disagrees, noting that US patent law does not allow an American company to ship “components” overseas to be assembled for the purpose of avoiding US patent law. The lower courts have sided with AT&T, but it certainly sounds like some of the Supreme Court justices are pretty skeptical about AT&T’s position, suggesting that it would be frightening to think of the implications of ruling in AT&T’s favor, and suddenly kicking off many new patent lawsuits from US companies looking to get paid for the use of patented products overseas. It could effectively make US patent law expand well beyond our borders — which could also upset governments around the world who don’t think it’s fair for US patent law to cover products outside the US. However, even more interesting, is how some of the arguments also highlight why software should never have been considered patentable in the first place. Tim Lee walks through the arguments of AT&T’s lawyer, and explains why he doesn’t seem to know what he’s talking about — while highlighting how the Supreme Court justices seem to recognize the problems of patenting 1s and 0s as a “set of instructions.”

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Comments on “Supreme Court Skeptical That US Patent Control Expands Beyond US Borders”

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AT says:

Re: Joel


Yes, the other company should be able to copy the patent elsewhere. In that scenario, the company selling the product outside the US cannot be considered to be competing. If, on the other hand, the original company feels that overseas markets are theirs as well, they are perfectly capable of applying for a patent in that country’s patent system, thus owning patents in all the markets they feel relevant. If they do not, that should be considered enough evidence that they are uninterested in those markets for the copying company to move forward in those other markets.

If the copying company violates such a patent in another country, the suit should be filed in the country where the violation occurred.

K. Baily says:

Re: Re: Software is not patentable in most countries

Very few countries recognize patents on software. In the EU, for example, you ca patent software only if it controls or interfaces to a physical device. Copyright and legal licensing ARE recognized. Patents are exclusive rights granted for a period of time to an invention or process. Inventors must seek a patent in every country where they seek governmental protection for their invention. Since software patents are not recognized in most countries, the patents for MP3 technology should not extend outside the US.
Personally, I’d like to see the US adopt the EU model.

erinol0 says:

end-user liability???

It seems like MS is saying that the patent is actually being violated by the end-user since the software would just be 1’s and 0’s without a hard drive to store it on and a physical machine to run the object on. I find this quite disturbing. If MS wins, that implies that MS doesn’t need a license for the patent to distribute the software in the US either, and that if they were not to purchase licenses in the future the end-user could (seemingly) be liable.

It is also interesting to note that the judges are considering that they have never ruled on whether software is patentable.

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