Overseas Infringement

Plaintiffs alleging infringement of patented Web browser technology may seek damages under 35 U.S.C. § 271(f), which prohibits manufacturing components of patented invention in United States to be assembled elsewhere, even though allegedly infringing products of personal computer operating system are created abroad by replicating source code from “golden master” disk supplied by defendant from United States, since source code must be installed on disk or hard drive for use, and therefore is legal equivalent of computer hardware.  The court drew a distinction between the “golden master” computer disk which is the windows source code and the chemical formula, because its contents are an operating element of the process which produces the result which is desired by a user or purchaser.  A chemical formula can be memorized and discarded.  The source code has to be installed, never to be discarded.  (Eolas Technologies Inc. v. Microsoft Corp., 70 USPQ2d 1937, DC NIll, 7/31/03).

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