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| Authored by: PolR on Friday, May 18 2012 @ 09:42 AM EDT |
> Bear in mind there is no res judicata precedent that says
> installing code on a computer creates an infringing device
> ...
Maybe not from the Supreme Court, but there is plenty at the Federal Circuit
level.
[ Reply to This | Parent | # ]
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| Authored by: Ian Al on Friday, May 18 2012 @ 10:03 AM EDT |
They stipulated that they infringed on the patent by having Windows Media Player
installed in a computer.
The Supreme Court stated in their opinion that
the infringing machine was only made when the software was installed on the
computer from the installation media. It was also part of their opinion that the
gold disk files, whether transmitted electronically or on a CD, constituted no
more than a blueprint.
Until it is expressed as a computer-readable
“copy,” e.g.,
on a CD-ROM, Windows software—indeed any software
detached from an
activating medium—remains uncombinable. It cannot be inserted into a CD-ROM
drive or
downloaded from the Internet; it cannot be installed or
executed on a
computer.
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
containing design information, e.g., a
schematic, template,
or prototype).
A blueprint may contain precise
instructions for the construction and combination of the components of a
patented device, but it is not itself a combinable
component of that device.
AT&T and its amici do not
suggest otherwise. Cf. Pellegrini v. Analog
Devices, Inc., (transmission
abroad of instructions for production of patented
computer
chips not covered by §271(f)).
Until it is attached to
the 'activating medium', the software is not an infringing
component.
Because it is so easy to encode software’s
instructions
onto a medium that can be read by a computer, AT&T
intimates,
that extra step should not play a decisive role
under §271(f).
But the
extra step is what renders the
software a usable, combinable part of a computer;
easy or
not, the copy-producing step is essential. Moreover, many
tools may be
used easily and inexpensively to generate the
parts of a device.
A
machine for making sprockets might
be used by a manufacturer to produce tens of
thousands of
sprockets an hour. That does not make the machine a
“component” of
the tens of thousands of devices in which
the sprockets are incorporated, at
least not under any
ordinary understanding of the term
“component.”
BTW, if you think quoting this mad opinion indicates
my concurrence in any way with the arguments then... well, it just
doesn't.
The Supremes make it clear that it is only the encoding of the
software on to the medium actually used for installation of the software that is
an infringing component. Even though the code on a software distribution disk
for the manufacture of the installation CD is identical, it is just a tool for
making the infringing component.---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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