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July 15, 2005

Patent infringement by teleportation

Patently-O comments on a lawsuit in which AT&T has accused Microsoft of infringing a patent on speech codecs. Microsoft claimed that it didn't infringe the patent because "Microsoft generates its source code in the U.S. That source code is copied and shipped abroad to Foreign computer manufacturers who . . . generated 2nd generation copies of the software that are then installed and sold."

Although Section 271(f) of the U.S. patent statute attempts to prohibit shipping components of patented inventions overseas to be combined there, Microsoft claimed (among other things) that it wasn't "supplying" components because it was the foreign-made copies, not the software that Microsoft supplied, that were installed and sold overseas. The District Court disagreed, finding that "supplying" software necessarily implies making a copy: "Copying, therefore, is part and parcel of software distribution."

It seems that the same logic would apply to "supplying" physical objects by "virtual teleportation" in the future (see my previous posting). For example, imagine that I have a piston for use in a patented automobile engine. I take a 3D photograph (using my handy-dandy 3D camera) of the piston, and send the digital photo file over the Internet to an overseas manufacturer. The manufacturer uses a 3D printer to produce a physical piston from the CAD file, and incorporates the piston into an automobile engine that it sells overseas. Am I an infringer under 271(f)? If Microsoft "supplied" the software in the case described above, then there's a strong argument to be made that I have "supplied" the piston even though I didn't transport any atoms overseas.

Stay tuned for developments in this area as 3D printing and desktop manufacturing become more widespread. If anyone knows of any cases specifically interpreting 271(f) in this context, please let me know.

Posted by Robert at July 15, 2005 9:04 AM
category: Software Patents


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