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.

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:Is this a bad thing?

[Scarblac]

That's the thing with patents, it doesn't matter if it's a clean-room design. Even if it's your own idea and you had never heard of anybody else doing it, if it infringes on a patent, you owe royalties.

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:Microsoft is behind this!

[figleaf]

Did you even read the case details?

One of the cases is about Microsoft' codecs. The source was created in the US, It was licensed by a foriegn company. The foriegn company used the code to sell a product abroad.

This make it AT&T against FOSS.
FOSS has a lot to lose if Microsoft loses.
Good thing DOJ is supporting 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) [cornell.edu]:

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 [typepad.com] on the Patently-O blog shows what's going on.

Asking the court.

[pavon]

I think that's an interesting question that should be asked in court.

The Supreme Court will not rule on theoretical situations, only cases concerning events that actually occurred. There are a couple of reasons for this, a big one being that it is seen as a better use of time to focus on laws that are actually affecting citizens and society, than on a bunch of what-ifs. Another reason is that the court's view on how narrow or wide judgments should be has varied over time.

Remember, the Supreme Court does not over-turn laws in the way you might think they do - they merely interpret the laws, which in the case of conflicting laws means determining which law "trumps" the other, in the scenario ruled upon. This is an important distinction. As an imaginary example, consider a state passing a law that says it is illegal to kill dogs. Then someone is attacked by a dog and kills it. Suppose that the Supreme Court took the stance that there is a constitutional right to self-defense, and naturally the constitution is higher on the pecking order than a state law. As in any case, the law would still stand, but in situations where self-defense is in play, other courts would now follow the precedent of the Supreme Court and find people not guilty. In all other situations, the law would remain in effect.

You can see then, that the justification that the Supreme Court gives for its rulings are just as important as the ruling itself, as they determine what aspects of the situation ruled upon are important in the ruling, and thus what situations the precedent will apply to in the future.

Some courts have been in favor of making very wide rulings that cause sweeping change to the way our laws are viewed. John Roberts, the current Supreme Court Justice, however, believes in narrow rulings. He has been quoted as saying "If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more". By focusing tightly on the details of a particular case, and not the wider social phenomena, you usually end up with less controversial rulings, but also tend to support the status quo.

All of which is a long way of saying that you won't get the answers you want, unless you can find someone with such patent who tries to enforce it.