I’ve just read the opinions released on Monday by the U.S. Supreme Court in two separate patent cases, KSR v. Teleflex and Microsoft v. AT&T. Though the business press has no trouble finding lawyers eager to announce the enormous significance of these decisions (“trillions of dollars,” ad. nauseum), the truth is, as always, that these opinions have little immediate or obvious impact.
But what both demonstrate to me is the dangerous chasm between the real world and the world of law, a chasm that gets deeper and more deadly all the time.
(On a related topic, see href="http://www.cioinsight.com/article2/0,1540,2124841,00.asp">“IP Law vs. Moore’s Law,” my column in this month’s CIO Insight.)
For simplicity, let’s just stick with the Microsoft case.
Microsoft v. AT&T concerned the reach of the U.S. patent law to products assembled and sold abroad. A special provision of the Patent Act, 35 USC § 271, extends what is otherwise U.S.-only protection for U.S. patent holders when a U.S. infringer “supplies” “components” from the U.S. that are used to make products abroad that infringe the U.S. patent. This case, involving an AT&T speech compression patent, asked whether Section 271 applied to infringing copies of Windows installed on PCs manufactured and sold abroad.
Justice Ginsberg’s tormented efforts to explain what “software” is and whether or not a master version of Windows given to foreign PC manufacturers constituted a “component” “supplied from the U.S.” reminded me in an unpleasant way of Justice Stevens’ efforts to explain, twenty years ago in the Betamax case, how a VCR works (not internally, just from the user’s perspective, something he clearly was not himself).
AT&T argued that software “in the abstract” can be considered a component, and therefore, even though nothing supplied from the U.S. was ever made part of a foreign PC (for even if a disk was sent abroad from Redmond, it still needed to be copied onto the foreign PCs by the foreign manufacturers), Microsoft was still in violation of Section 271. Windows, as an abstract piece of software, acts every bit as a “component” “supplied from the U.S.”
Not so, said the Court. Windows master disks are like blueprints, or the notes of a symphony; in the abstract they are instructions, not components in the “conventional” sense of the word, nor are they “supplied” from the U.S. because whatever leaves the U.S. doesn’t actually become part of any product, but is used to make copies, etc.
Ugh.
On the one hand, the Court probably reached the right conclusion—Section 271 was narrowly written to respond to a specific instance where a domestic manufacturer got around a patent by sending its product abroad in three boxes for easy reassembly. On the other hand, neither the majority nor Justice Alito’s concurrence (nothing physical sent from the U.S. becomes a component of anything, hence no liability) nor Justice Stevens' dissent seem to grasp that information products are made, sold, distributed and used in a single global market--the real problem. Or maybe they do get that, but recognize that it is for Congress and the Executive, not the Court, to take up the problem of uniform patent enforcement on a worldwide basis,
But more to the point, the linguistic mess created by trying to shoehorn software into patent law language that didn’t envision it, especially when that shoehorning is being done by jurists who so clearly don’t understand what software is and how it works, demonstrates again how, when law confronts revolutionary technology, the old methods of reasoning by analogy just don’t work. The result is a dangerous gap between law and reality.
Software is not a blueprint, nor is it the score of a symphony. Software is software, a unique, remarkable, new kind of thing that needs its own law, not clever (or not so clever) metaphors.
As Brooks Adams said it so perfectly 100 years ago, “You can no more reason from highway precedents to railway law than you can reason from the ox to the electric battery.”