Microsoft Asks Supreme Court to Hear $500 Million Eolas Appeal


Microsoft v. Eolas (on petition for certiorari).

At trial, Eolas won a half-billion dollar judgment against Microsoft after the jury found that Microsoft’s Internet Explorer violated an Eolas patent.  On appeal at the Federal Circuit, Microsoft won a new trial on several issues, but lost a major legal contention that allows Eolas to obtain extraterritorial damages under Section 271(f) of the Patent Act. 

Now, Microsoft has asked the Supreme Court to determine whether the Federal Circuit erred in determining that software code can qualify as a “component” of a patented invention under 271(f).

Question Presented: Whether 35 U.S.C. 271(f) — which imposes infringement liability on one who “supplies” “components” of a patented invention from the United States for “combination” abroad — is satisfied if no physical parts are suppled from the U.S. and all that is supplied is software code that foreign computer manufacturers use to program computers that are made and sold outside the U.S.?

Microsoft’s brief in support of the petition outlines jumbled nature of CAFC precedent on this point — Specifically noting cases such as:

  • Deepsouth (“these acts of Congress do not, and were not intended to, operate beyond the limits of the United States”);
  • Pellegrini (shipment of design instructions do not qualify under 271(f));
  • Bayer v. Housey (271(g) limited “component” to physical products);
  • NTP v. RIM (“it is difficult to conceive of how one might supply or cause to be supplied all or a substantial portion of the steps of a patented method in the sense contemplated by the phrase ‘components of a patented invention’ in section 271(f)”).


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