With Microsoft’s reply brief filed late last week, briefing is likely over in the battle over interpretation of 35 USC 271(f). Oral arguments will be held this Wednesday (February 21, 2007). The case boils down the following statement:
Whether, by exporting the golden masters containing machine-readable object code from which foreign replicated copies were made in foreign countries, installed overseas in foreign-made computers, and sold to foreign end users, Microsoft “supplie[d] . . . from the United States” the “components of a patented invention” in a manner that induced “the combination of such components outside of the United States.”
What is the component? Why Microsoft believes it should win on either theory of component:
- If the component is the golden master itself, then it cannot be infringing because the golden master itself was not combined in an infringing manner as required by the statute.
- If the component is the object code . . . well, object code cannot be a component because it is “an idea.”
As Hal Wegner recently noted in his widely-read newsletter, “It’s Hardball!” At oral arguments, two former Solicitors General will face-off Theodore Olson for Microsoft and Seth Waxman for AT&T. [Updated] Anything involving patent law at the Department of Justice goes through Daryl Joseffer and his boss Thomas Hungar. Joseffer will be given time at the arguments.
- Microsoft presumptively argues that these two suggestions for the ‘component’ are mutually exclusive. The do not, however, explain why both the golden master and the object code could be simultaneous components.
- I agree with Microsoft that AT&T’s Moby Dick analogy doesn’t sit well. . .
- All the briefs are available here.