Supreme Court Clarifies Extraterritorial Reach of 35 U.S.C. § 271(f) with Respect to Software Patents


In a significant victory for Microsoft and U.S. software manufacturers in general, the Supreme Court issued its decision in Microsoft Corp. v. AT&T Corp. (Case No. 05-1056) on April 30, 2007, ending a long-standing patent dispute between the two technology titans. In its decision, the Court answered the following two questions:

1. When, or in what form, does software qualify as a “component” under 35 U.S.C. § 271(f)?

2. Are copies of software code made abroad from a single master version supplied from the United States “supplied] . . . from the United States” within the meaning of 35 U.S.C. § 271(f)?

On the first question, the Court held that copies of software code, when embodied in a computerreadable

medium, can be a “component of a patented invention” under § 271(f). Software code in the abstract, however, devoid of any physical medium, is not a “component” within the meaning of the statute.

On the second question, the Court held that copies of software code made abroad from a master version of code supplied from the United States were not “supplie[d] from the United States” under §271(f).

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