Of the two Supreme Court patent law opinions released today, KSR v. Teleflex will undoubtedly get more attention.Â But Microsoft v. AT&T and its narrow interpretation of Section 271(f) deserves a post in its own right.
The much-criticized Section 271(f) of the Patent Act provides that infringement occurs when a domestic defendant supplies “components” of a patented invention for “combination” abroad.Â Microsoft sent a master of Windows to a foreign computer manufacturer (and/or supplied the code electronically); the computer manufacturer arranged for the reproduction of Windows and copied Windows onto its machines.Â The resulting product infringed an AT&T patent on speech processing technology, written to encompass the technology embodied in an apparatus, i.e., a computer or other medium.
The majority opinion for the Supreme Court interprets the word “component” in Section 271(f) to refer only to instantiated copies of a computer program, rather than to the “abstract” computer code that comprises the program in some ideal sense:
[T]he very components supplied from the United States, and not copies thereof, trigger Section 271(f) liability when combined abroad to form the patented invention at issue.Â Here, as we have repeatedly noted . . ., the copies of Windows actually installed on the foreign computers were not themselves supplied from the United States.Â Indeed, those copies did not exist until they were generated by third parties outside the United States.
Reading this opinion was, in a way, like stepping into a Jules Verne novel:Â It sounds very sophisticated and high tech, but the whole thing has a supremely mechanistic, 19th century tone.Â Computer programs come in two forms — “intangible, uncombinable information, more like notes of music in the head of a composer than ‘a roller that cuases a player piano to produce sound’,” (footnote 12, quoting Justice Stevens’s dissent), on the one hand — and a “tangible ‘copy’ of software, the instructions encoded on a medium such as a CD-ROM,” on the other.Â Microsoft supplied the former, not the latter, and Section 271(f) only speaks to the latter.
Given the practical difficulties presented by Section 271(f) in the first place (that is, the ease with which it can be avoided by careful distribution of component manufacturing, and its incentives to relocate manufacturing outside the United States), finding a way to relieve Microsoft of liability here is probably a good thing.
Still, the mechanistic feel of the case leaves me feeling uncomfortable.Â Perhaps the reason is that patent and copyright now have such different but equally unsatisfying rubrics for processing the Schrodingerian character of computer data.Â The Microsoft opinion itself is an artifact of the language of Section 271(f) and the fact that AT&T was pursuing an apparatus claim, but there’s no avoiding the fact that in that contextÂ Microsoft’s Windows technology does not become a cognizable legal thing until it shifts from intangible to tangible — despite the fact, as observed by Justice Stevens in dissent and the Federal Circuit in the case below, that this transition is unbelievably cheap and fast.Â In patent law, information is an intangible, but materiality still counts.
In copyright law, by contrast, the accumulation of file sharing cases is rapidly shoring up the creaky conceptual foundations of Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir.1997), which found that the distribution right (Section 106(3) of the Copyright Act) can be violated by making a copy of the work available for others to reproduce.Â “Uploaders” in file sharing systems, in other words, are illegal distributors, because other system users can make illegal copies of their files.Â Precisely because copying those files is cheap and fast, infringement liability flows upstream.Â The line between intangibility and materiality matters not so much.
Maybe that’s not so Jules Verne after all.Â Maybe it reminds me more of the original Wild Wild West.Â Wacky bad guys, wackier gizmos and gadgets,Â virtue triumphant.Â James West always got the girl, and Artemus Gordon always wondered, what if and why me?