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Authored by: PolR on Sunday, June 09 2013 @ 06:52 PM EDT
The scenario I contemplate doesn't work at all as you imagine.

The plan is not to sue the end user and find the supplier liable. The plan is to make sure suing end users goes nowhere because they are shielded from liability. Instead patent holders should sue the suppliers on the grounds he is making software that infringes when the user uses it as intended.

There is already a law similar to this. It is called patent exhaustion. It says if the supplier has a license the patent holder can't sue the end users on the grounds they don't have a separate license. End users are automatically shielded from liability by the supplier's license. I think they will just extend this doctrine to situations where the supplier should have taken a license but didn't. They will permit to sue the end users in other situations.

And if you can't patent that software CD, then it's settled Supreme Court precedent that sticking that into a computer CAN NOT create a new patentable machine.
There is no such Supreme Court precedent about software. I would love to have one but we are not there yet. The current legal thinking that loading bits in computer memory rewires the computer has never been challenged at the Supreme Court and they have never ruled on that. The new machine doctrine is still valid case law.

See this quote from Microsoft vs AT&T for evidence that the Supreme Court has not made the precedent you say they did.

Neither Windows software (e.g., in a box on the shelf) nor a computer standing alone (i.e., without Windows installed) infringes AT & T's patent. Infringement occurs only when Windows is installed on a computer, thereby rendering it capable of performing as the patented speech processor. Microsoft stipulated that by installing Windows on its own computers during the software development process, it directly infringed the '580 patent. Microsoft further acknowledged that by licensing copies of Windows to manufacturers of computers sold in the United States, it induced infringement of AT & T's patent. Id., at 42a; Brief for Petitioner 3-4; Brief for Respondent 9, 19.
Note the the Supreme Court has just accepted a concession from Microsoft at face value. They didn't rule on whether or not the new machine doctrine is good law because this issue was not litigated in front of them. But the ruling is still ugly because the Supremes have not questioned the validity of the underlying principles.

I repeat, Congress and the president don't intend to change the rules about patentable subject matter for now. They plan to change the rules on liability in a context where patentable subject matter is status quo. The argument you propose is not the status quo. It is a departure from current case law and I believe the proposed law won't allow that.

I believe there will be no absurdities under the new law that aren't already occurring under the current law because patentable subject matter will be status quo.

[ Reply to This | Parent | # ]

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