Just this past week, oral arguments commenced in the Microsoft v. ATT case. The case holds major interest in the patent community because it has the possibility of drastically increasing the reach of U.S. court jurisdiction to enforce patents overseas. Essentially, 271(f) says that a U.S. company cannot make stuff (read: components), ship it to another nation to be assembled in a way that infringes a U.S. patent, and then import those infringing goods to be sold back in the good ol’ U.S. of A. The problem in the current case is that Microsoft sent a master disc of software overseas, and during oral arguments there didn’t seem to be anyone in the room who could explain or understand how software could be a component under 271(f), and thus enable the court to find infringement. The jurisdictional issues are all well and good, but what is most intriguing is the confusion regarding the status of software. The point was made that software is more akin to blueprints or instructions , which does not violate 271(f), as discussed by Patent Prospector. The point is, the Court devoted an awful lot of time to talking about the nature of software, and Justice Stevens even asked the question of whether software is patentable. Given the nature of the Justices’ reactions and the fact that Stevens asked the question point blank, could software patents be joining the dodo bird and Prohibition in the annals of history? Read the full transcript here (PDF).

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