Patent Case With FOSS Implications

ThousandStars writes, "SCOTUSBlog posted about the liklihood that the Supreme Court will review whether an organization can get around software patents by completing the work in other countries. This case has huge implications for OSS projects with coders in the U.S., as it may inhibit, among other things, the ability of American coders to contribute to projects that violate U.S. software patents." The Patently-O blog gives background on the case.

Comments

Re:Software patents?

[Scarblac]

Yes. The Doha round of WTO negotiations have collapsed, so every country is making bilateral agreements with every other country.

And the US is trying to get their IP laws implemented everywhere else, along with mutual recognition of existing patents (that usually don't exist elsewhere yet, so whenever that happens, US companies have lots of patents while companies from the other side have none).

And governments everywhere listen to the same big multinationals, who have US patent portfolios and want to grab the open space everywhere else. See Microsoft etc fighting for software patents in the EU, that sort of thing.

So yes we care, because what happens in the US happens everywhere else, a bit later.

Re:Microsoft is behind this!

[ajakk]

Will someone please mod the parent down? Microsoft is filing a petition for cert. so that the Supreme Court can overturn the current interpretation of this law. Despite everyone's hatred for Microsoft, they are actually promoting the position that would be most beneficial for OSS. The U.S. government is also supporting this interpretation. From the article:

The Government argues that the extraterritorial nature of U.S. patents should be narrowly construed and that if someone wants rights to stop foreign infringement, then they should get foreign patents.

AT&T is the one trying to enforce their U.S. patents, not Microsoft.

Re:Step back......

[deblau]

I can understand that a law exists that prevents items that violate US patent law from being exported

That's not what's going on here. The definition of direct infringement is in 35 U.S.C. 271(a):

Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

The law doesn't cover exports directly, but it does say you can't make a patented invention in the US (for export) unless you have authority. There is, however, a loophole in this definition: if you wanted to export a patented invention to sell it overseas (without permission), but you can't make it domestically because of 271(a), then you can make the parts in the US, ship the parts overseas, and have the invention assembled there. Congress didn't like that, so they enacted 271(f).

271(f) comes in two flavors. 271(f)(1) basically says that you can't ship parts overseas for assembly if you couldn't legally assemble them in the US. 271(f)(2) basically says that you can't make in the US and ship overseas any items which have no use other than as part of a patented invention.

The Supreme Court is trying to figure out two things: whether object code counts as a 'component part' that can be combined with other components overseas in violation of 271(f), and if so, whether copies made overseas of object code originating in the US count as 'made in the US' for the purposes of assembly overseas. The image on the Patently-O blog shows what's going on.