October 30, 2006

The U.S. Supreme Court announced on Friday that it has granted a writ of certiorari for Microsoft Corp. v. AT&T Corp to allow for additional comment on foreign patent damages. In July of 2005, the Court of Appeals for the Federal Circuit upheld the lower court’s decision that AT&T could pursue royalties from Microsoft from Microsoft’s overseas manufacture and sale of infringing software. At issue were the master versions of the Microsoft Windows® product that Microsoft would ship overseas and allow specific computer manufacturers to replicate the software and install it on computers being assembled and sold overseas. The software contained specific speech codecs that were held to be infringing of AT&T reissue patent no. 32,580. The Federal Circuit affirmed the decision that Microsoft was liable to AT&T under 35 U.S.C. § 271(f), holding that shipping software overseas for copying purposes counts as “supplying” under the statute. Microsoft’s petition for a writ of certiorari contained two issues: “(1) Whether digital software code – an intangible sequence of “1’s” and “0’s” – may be considered a “component[] of a patented invention” within the meaning of Section 271(f)(1); and, if so, (2) Whether copies of such a “component[]” made in a foreign country are “supplie[d] … from the United States.” According to the Washington Post article (link below), this “is one of the most important patent cases that will come before the court this year and could determine the reach of U.S. patents overseas.”

U.S. Supreme Court Announcement: LINK
Washington Post News Article: LINK
Microsoft v. AT&T (Federal Circuit Decision): LINK

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Mark Reichel
Reichel IP LLC

I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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