Government Responds in Microsoft Patent Case

On April 24, the Supreme Court asked for the views of the Solicitor General in the matter Microsoft v. AT&T (05-1056), an important IP case dealing with patents on software code. The government has just filed this amicus brief supporting a cert. grant (Microsoft’s petition can be found here). The case is discussed here by Dennis Crouch at the Patently-O blog.

The questions presented are:

In certain circumstances, Section 271(f) of the Patent Act prohibits the “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.” 35 U.S.C. 271(f )(1) and (2). For purposes of that statute, the questions presented are:

1. Whether software object code can be a component of a patented invention; and, if so,
2. Whether copies of software object code are “supplie[d]” from the United States when those copies are created overseas by replicating a separate master version supplied from the United States.

The case will be considered during the October 27 Conference.