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.
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