Microsoft Liable for Patent Infringement of Software Installed Overseas

Authors

• Ari Rafilson, Southern Methodist University, Dedman School of Law

Abstract

In a case that is sure to have major repercussions for the domestic software industry, the Federal Circuit Court held Microsoft liable for damages arising from foreign-made copies of Windows software containing patent- infringing code.1 The issue in AT&T Corp. v. Microsoft Corp. was whether a software manufacturer could be held liable for patent infringement when it exported software from the United States and foreign computer manufacturers subsequently copied and installed the software onto foreign computers. Under 35 U.S.C. § 271(f), liability only arises when components of a patent-infringing invention are supplied from the United States to foreign countries. Microsoft contended it was not liable for the foreign sales under two alternative arguments. First, the software was merely intangible information, and therefore it could not be a "component" of a patented invention. Second, even if software was a "component," software copied in another country could not be deemed "supplied" from the United States. Whether the software could be deemed "supplied" when it is copied overseas onto a foreign computer was an issue of first impression for the court. The statute does not define the term "supplied," and the Federal Circuit struggled with this determination.

Recommended Citation

Ari Rafilson, Microsoft Liable for Patent Infringement of Software Installed Overseas, 10 Computer L. Rev. & Tech. J. 219 (2006)