(Slip Opinion) OCTOBER TERM, 2006 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MICROSOFT CORP. v. AT&T CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
No. 05–1056. Argued February 21, 2007—Decided April 30, 2007
It is the general rule under United States patent law that no infringe
ment occurs when a patented product is made and sold in another
country. There is an exception. Section 271(f) of the Patent Act,
adopted in 1984, provides that infringement does occur when one
“suppl[ies] . . . from the United States,” for “combination” abroad, a
patented invention’s “components.” 35 U. S. C. §271(f)(1). This case
concerns the applicability of §271(f) to computer software first sent
from the United States to a foreign manufacturer on a master disk,
or by electronic transmission, then copied by the foreign recipient for
installation on computers made and sold abroad.
AT&T holds a patent on a computer used to digitally encode and
compress recorded speech. Microsoft’s Windows operating system
has the potential to infringe that patent because Windows incorpo
rates software code that, when installed, enables a computer to proc
ess speech in the manner claimed by the patent. Microsoft sells Win
dows to foreign manufacturers who install the software onto the
computers they sell. Microsoft sends each manufacturer a master
version of Windows, either on a disk or via encrypted electronic
transmission, which the manufacturer uses to generate copies. Those
copies, not the master version sent by Microsoft, are installed on the
foreign manufacturer’s computers. The foreign-made computers are
then sold to users abroad.
AT&T filed an infringement suit charging Microsoft with liability
for the foreign installations of Windows. By sending Windows to for
eign manufacturers, AT&T contended, Microsoft “supplie[d] . . . from
the United States,” for “combination” abroad, “components” of
AT&T’s patented speech-processing computer, and, accordingly, was
liable under §271(f). Microsoft responded that unincorporated soft
2 MICROSOFT CORP. v. AT&T CORP.
Syllabus
ware, because it is intangible information, cannot be typed a “compo
nent” of an invention under §271(f). Microsoft also urged that the
foreign-generated copies of Windows actually installed abroad were
not “supplie[d] . . . from the United States.” Rejecting these re
sponses, the District Court held Microsoft liable under §271(f), and a
divided Federal Circuit panel affirmed.
Held: Because Microsoft does not export from the United States the
copies of Windows installed on the foreign-made computers in ques
tion, Microsoft does not “suppl[y] . . . from the United States” “com
ponents” of those computers, and therefore is not liable under §271(f)
as currently written. Pp. 7–19.
(a) A copy of Windows, not Windows in the abstract, qualifies as a
“component” under §271(f). Section 271(f) attaches liability to the
supply abroad of the “components of a patented invention, where
such components are uncombined in whole or in part, in such manner
as to actively induce the combination of such components.” §271(f)(1)
(emphasis added). The provision thus applies only to “such compo
nents” as are combined to form the “patented invention” at issue—
here, AT&T’s speech-processing computer. Until expressed as a com
puter-readable “copy,” e.g., on a CD-ROM, Windows—indeed any
software detached from an activating medium—remains uncom
binable. It cannot be inserted into a CD-ROM drive or downloaded
from the Internet; it cannot be installed or executed on a computer.
Abstract software code is an idea without physical embodiment, and
as such, it does not match §271(f)’s categorization: “components”
amenable to “combination.” Windows abstracted from a tangible copy
no doubt is information—a detailed set of instructions—and thus
might be compared to a blueprint (or anything else containing design
information). A blueprint may contain precise instructions for the
construction and combination of the components of a patented device,
but it is not itself a combinable component.
The fact that it is easy to encode software’s instructions onto a com
puter-readable medium does not counsel a different answer. The
copy-producing step is what renders software a usable, combinable
part of a computer; easy or not, the extra step is essential. Moreover,
many tools may be used easily and inexpensively to generate the
parts of a device. Those tools are not, however, “components” of the
devices in which the parts are incorporated, at least not under any
ordinary understanding of the term “component.” Congress might
have included within §271(f)’s compass, for example, not only a pat
ented invention’s combinable “components,” but also “information, in
structions, or tools from which those components readily may be gen
erated.” It did not. Pp. 9–12.
(b) Microsoft did not “suppl[y] . . . from the United States” the for
Cite as: 550 U. S. ____ (2007) 3
Syllabus
eign-made copies of Windows installed on the computers here in
volved. Under a conventional reading of §271(f)’s text, those copies
were “supplie[d]” from outside the United States. The Federal Cir
cuit majority concluded, however, that for software components, the
act of copying is subsumed in the act of supplying. A master sent
abroad, the majority observed, differs not at all from exact copies,
generated easily, inexpensively, and swiftly from the master. Hence,
sending a single copy of software abroad with the intent that it be
replicated invokes §271(f) liability for the foreign-made copies. Judge
Rader, dissenting, noted that “supplying” is ordinarily understood to
mean an activity separate and distinct from any subsequent “copy
ing,” “replicating,” or “reproducing”—in effect, manufacturing. He
further observed that the only true difference between software com
ponents and physical components of other patented inventions is that
copies of software are easier to make and transport. But nothing in
§271(f)’s text, Judge Rader maintained, renders ease of copying a
relevant, no less decisive, factor in triggering liability for infringe
ment. The Court agrees. Under §271(f)’s text, the very components
supplied from the United States, and not foreign-made copies thereof,
trigger liability when combined abroad to form the patented inven
tion at issue. While copying software abroad is indeed easy and in
expensive, the same can be said of other items, such as keys copied
from a master. Section 271(f) contains no instruction to gauge when
duplication is easy and cheap enough to deem a copy in fact made
abroad nevertheless “supplie[d] . . . from the United States.” The ab
sence of anything addressing copying in the statutory text weighs
against a judicial determination that replication abroad of a master
dispatched from the United States “supplies” the foreign-made copies
from this country. Pp. 12–14.
(c) Any doubt that Microsoft’s conduct falls outside §271(f)’s com
pass would be resolved by the presumption against extraterritorial
ity. Foreign conduct is generally the domain of foreign law, and in
the patent area, that law may embody different policy judgments
about the relative rights of inventors, competitors, and the public.
Applied here, the presumption tugs strongly against construing
§271(f) to encompass as a “component” not only a physical copy of
software, but also software’s intangible code, and to render “sup
plie[d] . . . from the United States” not only exported copies of soft
ware, but also duplicates made abroad. Foreign law alone, not
United States law, currently governs the manufacture and sale of
components of patented inventions in foreign countries. If AT&T de
sires to prevent copying abroad, its remedy lies in obtaining and en
forcing foreign patents. Pp. 14–16.
(d) While reading §271(f) to exclude from coverage foreign-made
4 MICROSOFT CORP. v. AT&T CORP.
Syllabus
copies of software may create a “loophole” in favor of software mak
ers, the Court is not persuaded that dynamic judicial interpretation
of §271(f) is in order; the “loophole” is properly left for Congress to
consider, and to close if it finds such action warranted. Section 271(f)
was a direct response to a gap in U. S. patent law revealed by Deep-
south Packing Co. v. Laitram Corp., 406 U. S. 518, where the items
exported were kits containing all the physical, readily assemblable
parts of a machine (not an intangible set of instructions), and those
parts themselves (not foreign-made copies of them) would be com
bined abroad by foreign buyers. Having attended to that gap, Con
gress did not address other arguable gaps, such as the loophole AT&T
describes. Given the expanded extraterritorial thrust AT&T’s read
ing of §271(f) entails, the patent-protective determination AT&T
seeks must be left to Congress. Cf. Sony Corp. of America v. Univer
sal City Studios, Inc., 464 U. S. 417, 431. Congress is doubtless
aware of the ease with which electronic media such as software can
be copied, and has not left the matter untouched. See the Digital
Millennium Copyright Act, 17 U. S. C. §1201 et seq. If patent law is
to be adjusted better to account for the realities of software distribu
tion, the alteration should be made after focused legislative consid
eration, not by the Judiciary forecasting Congress’ likely disposition.
Pp. 17–19.
414 F. 3d 1366, reversed.
GINSBURG, J., delivered the opinion of the Court, except as to footnote
14. SCALIA, KENNEDY, and SOUTER, JJ., joined that opinion in full.
ALITO, J., filed an opinion concurring as to all but footnote 14, in which
THOMAS and BREYER, JJ., joined. STEVENS, J., filed a dissenting opin
ion. ROBERTS, C. J., took no part in the consideration or decision of the
case.
Cite as: 550 U. S. ____ (2007) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–1056
_________________
MICROSOFT CORPORATION, PETITIONER v.
AT&T CORP.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[April 30, 2007]
JUSTICE GINSBURG delivered the opinion of the Court,
except as to footnote 14.
It is the general rule under United States patent law
that no infringement occurs when a patented product is
made and sold in another country. There is an exception.
Section 271(f) of the Patent Act, adopted in 1984, provides
that infringement does occur when one “supplies . . . from
the United States,” for “combination” abroad, a patented
invention’s “components.” 35 U. S. C. §271(f)(1). This case
concerns the applicability of §271(f) to computer software
first sent from the United States to a foreign manufac
turer on a master disk, or by electronic transmission, then
copied by the foreign recipient for installation on com
puters made and sold abroad.
AT&T holds a patent on an apparatus for digitally
encoding and compressing recorded speech. Microsoft’s
Windows operating system, it is conceded, has the poten
tial to infringe AT&T’s patent, because Windows incorpo
rates software code that, when installed, enables a com
puter to process speech in the manner claimed by that
patent. It bears emphasis, however, that uninstalled
2 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
Windows software does not infringe AT&T’s patent any
more than a computer standing alone does; instead, the
patent is infringed only when a computer is loaded with
Windows and is thereby rendered capable of performing as
the patented speech processor. The question before us:
Does Microsoft’s liability extend to computers made in
another country when loaded with Windows software
copied abroad from a master disk or electronic transmis
sion dispatched by Microsoft from the United States? Our
answer is “No.”
The master disk or electronic transmission Microsoft
sends from the United States is never installed on any of
the foreign-made computers in question. Instead, copies
made abroad are used for installation. Because Microsoft
does not export from the United States the copies actually
installed, it does not “suppl[y] . . . from the United States”
“components” of the relevant computers, and therefore is
not liable under §271(f) as currently written.
Plausible arguments can be made for and against ex
tending §271(f) to the conduct charged in this case as
infringing AT&T’s patent. Recognizing that §271(f) is an
exception to the general rule that our patent law does not
apply extraterritorially, we resist giving the language in
which Congress cast §271(f) an expansive interpretation.
Our decision leaves to Congress’ informed judgment any
adjustment of §271(f) it deems necessary or proper.
I
Our decision some 35 years ago in Deepsouth Packing
Co. v. Laitram Corp., 406 U. S. 518 (1972), a case about a
shrimp deveining machine, led Congress to enact §271(f).
In that case, Laitram, holder of a patent on the time-and
expense-saving machine, sued Deepsouth, manufacturer of
an infringing deveiner. Deepsouth conceded that the
Patent Act barred it from making and selling its deveining
machine in the United States, but sought to salvage a
Cite as: 550 U. S. ____ (2007) 3
Opinion of the Court
portion of its business: Nothing in United States patent
law, Deepsouth urged, stopped it from making in the
United States the parts of its deveiner, as opposed to the
machine itself, and selling those parts to foreign buyers for
assembly and use abroad. Id., at 522–524.1 We agreed.
Interpreting our patent law as then written, we reiter
ated in Deepsouth that it was “not an infringement to
make or use a patented product outside of the United
States.” Id., at 527; see 35 U. S. C. §271(a) (1970 ed.)
(“[W]hoever without authority makes, uses or sells any
patented invention, within the United States during the
term of the patent therefor, infringes the patent.”). Deep-
south’s foreign buyers did not infringe Laitram’s patent,
we held, because they assembled and used the deveining
machines outside the United States. Deepsouth, we there
fore concluded, could not be charged with inducing or
contributing to an infringement. 406 U. S., at 526–527.2
Nor could Deepsouth be held liable as a direct infringer,
for it did not make, sell, or use the patented invention—
the fully assembled deveining machine—within the
United States. The parts of the machine were not them
selves patented, we noted, hence export of those parts,
unassembled, did not rank as an infringement of
Laitram’s patent. Id., at 527–529.
Laitram had argued in Deepsouth that resistance to
extension of the patent privilege to cover exported parts
——————
1 Deepsouth shipped its deveining equipment “to foreign customers in
three separate boxes, each containing only parts of the 1¾-ton ma
chines, yet the whole [was] assemblable in less than one hour.” Deep-
south Packing Co. v. Laitram Corp., 406 U. S. 518, 524 (1972).
2 See 35 U. S. C. §271(b) (1970 ed.) (“Whoever actively induces in
fringement of a patent shall be liable as an infringer.”); §271(c) (render
ing liable as a contributory infringer anyone who sells or imports a
“component” of a patented invention, “knowing the same to be espe
cially made or especially adapted for use in an infringement of such
patent, and not a staple article or commodity of commerce suitable for
substantial non-infringing use”).
4 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
“derived from too narrow and technical an interpretation
of the [Patent Act].” Id., at 529. Rejecting that argument,
we referred to prior decisions holding that “a combination
patent protects only against the operable assembly of the
whole and not the manufacture of its parts.” Id., at 528.
Congress’ codification of patent law, we said, signaled no
intention to broaden the scope of the privilege. Id., at 530
(“When, as here, the Constitution is permissive, the sign of
how far Congress has chosen to go can come only from
Congress.”). And we again emphasized that
“[o]ur patent system makes no claim to extraterrito
rial effect; these acts of Congress do not, and were not
intended to, operate beyond the limits of the United
States; and we correspondingly reject the claims of
others to such control over our markets.” Id., at 531
(quoting Brown v. Duchesne, 19 How. 183, 195 (1857)).
Absent “a clear congressional indication of intent,” we
stated, courts had no warrant to stop the manufacture and
sale of the parts of patented inventions for assembly and
use abroad. 406 U. S., at 532.
Focusing its attention on Deepsouth, Congress enacted
§271(f). See Patent Law Amendments Act of 1984, §101,
98 Stat. 3383; Fisch & Allen, The Application of Domestic
Patent Law to Exported Software: 35 U. S. C. §271(f), 25
U. Pa. J. Int’l Econ. L. 557, 565 (2004) (“Congress specifi
cally intended §271(f) as a response to the Supreme
Court’s decision in Deepsouth”).3 The provision expands
——————
3 Seealso, e.g., Patent Law Amendments of 1984, S. Rep. No. 98–663,
pp. 2–3 (1984) (describing §271(f) as “a response to the Supreme Court’s
1972 Deepsouth decision which interpreted the patent law not to make
it infringement where the final assembly and sale is abroad”); Section-
by-Section Analysis of H. R. 6286, 130 Cong. Rec. 28069 (1984) (“This
proposal responds to the United States Supreme Court decision in
Deepsouth . . . concerning the need for a legislative solution to close a
loophole in [the] patent law.”).
Cite as: 550 U. S. ____ (2007) 5
Opinion of the Court
the definition of infringement to include supplying from
the United States a patented invention’s components:
“(1) Whoever without authority supplies or causes
to be supplied in or from the United States all or a
substantial portion of the components of a patented
invention, where such components are uncombined in
whole or in part, in such manner as to actively induce
the combination of such components outside of the
United States in a manner that would infringe the
patent if such combination occurred within the United
States, shall be liable as an infringer.
“(2) Whoever without authority supplies or causes
to be supplied in or from the United States any com
ponent of a patented invention that is especially made
or especially adapted for use in the invention and not
a staple article or commodity of commerce suitable for
substantial noninfringing use, where such component
is uncombined in whole or in part, knowing that such
component is so made or adapted and intending that
such component will be combined outside of the
United States in a manner that would infringe the
patent if such combination occurred within the United
States, shall be liable as an infringer.” 35 U. S. C.
§271(f).
II
Windows is designed, authored, and tested at Micro-
soft’s Redmond, Washington, headquarters. Microsoft
sells Windows to end users and computer manufacturers,
both foreign and domestic. Purchasing manufacturers
install the software onto the computers they sell. Micro-
soft sends to each of the foreign manufacturers a master
version of Windows, either on a disk or via encrypted
electronic transmission. The manufacturer uses the mas
ter version to generate copies. Those copies, not the mas
ter sent by Microsoft, are installed on the foreign manu
6 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
facturer’s computers. Once assembly is complete, the
foreign-made computers are sold to users abroad. App. to
Pet. for Cert. 45a–46a.4
AT&T’s patent (’580 patent) is for an apparatus (as
relevant here, a computer) capable of digitally encoding
and compressing recorded speech. Windows, the parties
agree, contains software that enables a computer to proc
ess speech in the manner claimed by the ’580 patent. In
2001, AT&T filed an infringement suit in the United
States District Court for the Southern District of New
York, charging Microsoft with liability for domestic and
foreign installations of Windows.
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 Win
dows on its own computers during the software develop
ment process, it directly infringed the ’580 patent.5 Micro-
soft 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.6
Id., at 42a; Brief for Petitioner 3–4; Brief for Respondent
9, 19.
Microsoft denied, however, any liability based on the
master disks and electronic transmissions it dispatched to
——————
4 Microsoft also distributes Windows to foreign manufacturers indi
rectly, by sending a master version to an authorized foreign “replica
tor”; the replicator then makes copies and ships them to the manufac
turers. App. to Pet. for Cert. 45a–46a.
5 See 35 U. S. C. §271(a) (“[W]hoever without authority makes, uses,
offers to sell, or sells any patented invention, within the United States
or imports into the United States any patented invention during the
term of the patent therefor, infringes the patent.”).
6 See §271(b) (“Whoever actively induces infringement of a patent
shall be liable as an infringer.”).
Cite as: 550 U. S. ____ (2007) 7
Opinion of the Court
foreign manufacturers, thus joining issue with AT&T. By
sending Windows to foreign manufacturers, AT&T con
tended, Microsoft “supplie[d] . . . from the United States,”
for “combination” abroad, “components” of AT&T’s pat
ented speech processor; accordingly, AT&T urged, Micro-
soft was liable under §271(f). See supra, at 5 (reproducing
text of §271(f)). Microsoft responded that unincorporated
software, because it is intangible information, cannot be
typed a “component” of an invention under §271(f). In any
event, Microsoft urged, the foreign-generated copies of
Windows actually installed abroad were not “supplie[d] . . .
from the United States.” Rejecting these responses, the
District Court held Microsoft liable under §271(f). 71
USPQ 2d 1118 (SDNY 2004). On appeal, a divided panel
of the Court of Appeals for the Federal Circuit affirmed.
414 F. 3d 1366 (2005). We granted certiorari, 549 U. S.
___ (2006), and now reverse.
III
A
This case poses two questions: First, when, or in what
form, does software qualify as a “component” under
§271(f)? Second, were “components” of the foreign-made
computers involved in this case “supplie[d]” by Microsoft
“from the United States”? 7
As to the first question, no one in this litigation argues
that software can never rank as a “component” under
§271(f). The parties disagree, however, over the stage at
which software becomes a component. Software, the “set
of instructions, known as code, that directs a computer to
——————
7 The record leaves unclear which paragraph of §271(f) AT&T’s claim
invokes. While there are differences between §271(f)(1) and (f)(2), see,
e.g., infra, at 18, n. 18, the parties do not suggest that those differences
are outcome determinative. Cf. infra, at 14–15, n. 16 (explaining why
both paragraphs yield the same result). For clarity’s sake, we focus our
analysis on the text of §271(f)(1).
8 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
perform specified functions or operations,” Fantasy Sports
Properties, Inc. v. Sportsline.com, Inc., 287 F. 3d 1108,
1118 (CA Fed. 2002), can be conceptualized in (at least)
two ways. One can speak of software in the abstract: the
instructions themselves detached from any medium. (An
analogy: The notes of Beethoven’s Ninth Symphony.) One
can alternatively envision a tangible “copy” of software,
the instructions encoded on a medium such as a CD-ROM.
(Sheet music for Beethoven’s Ninth.) AT&T argues that
software in the abstract, not simply a particular copy of
software, qualifies as a “component” under §271(f). Micro-
soft and the United States argue that only a copy of soft
ware, not software in the abstract, can be a component.8
The significance of these diverse views becomes appar
ent when we turn to the second question: Were compo
nents of the foreign-made computers involved in this case
“supplie[d]” by Microsoft “from the United States”? If the
relevant components are the copies of Windows actually
installed on the foreign computers, AT&T could not per
suasively argue that those components, though generated
abroad, were “supplie[d] . . . from the United States” as
§271(f) requires for liability to attach.9 If, on the other
——————
8 Microsoft and the United States stress that to count as a component,
the copy of software must be expressed as “object code.” “Software in
the form in which it is written and understood by humans is called
‘source code.’ To be functional, however, software must be converted (or
‘compiled’) into its machine-usable version,” a sequence of binary
number instructions typed “object code.” Brief for United States as
Amicus Curiae 4, n. 1; 71 USPQ 2d 1118, 1119, n. 5 (SDNY 2004)
(recounting Microsoft’s description of the software development proc
ess). It is stipulated that object code was on the master disks and
electronic transmissions Microsoft dispatched from the United States.
9 On this view of “component,” the copies of Windows on the master
disks and electronic transmissions that Microsoft sent from the United
States could not themselves serve as a basis for liability, because those
copies were not installed on the foreign manufacturers’ computers. See
§271(f)(1) (encompassing only those components “combin[ed] . . . outside
of the United States in a manner that would infringe the patent if such
Cite as: 550 U. S. ____ (2007) 9
Opinion of the Court
hand, Windows in the abstract qualifies as a component
within §271(f)’s compass, it would not matter that the
master copies of Windows software dispatched from the
United States were not themselves installed abroad as
working parts of the foreign computers.10
With this explanation of the relationship between the
two questions in view, we further consider the twin
inquiries.
B
First, when, or in what form, does software become a
“component” under §271(f)? We construe §271(f)’s terms
“in accordance with [their] ordinary or natural meaning.”
FDIC v. Meyer, 510 U. S. 471, 476 (1994). Section 271(f)
applies to the supply abroad of the “components of a pat
ented invention, where such components are uncombined
in whole or in part, in such manner as to actively induce
the combination of such components.” §271(f)(1) (emphasis
added). The provision thus applies only to “such compo
nents”11 as are combined to form the “patented invention”
at issue. The patented invention here is AT&T’s speech-
processing computer.
Until it is expressed as a computer-readable “copy,” e.g.,
on a CD-ROM, Windows software—indeed any software
detached from an activating medium—remains uncom
binable. It cannot be inserted into a CD-ROM drive or
downloaded from the Internet; it cannot be installed or
executed on a computer. Abstract software code is an idea
——————
combination occurred within the United States”).
10 The Federal Circuit panel in this case, relying on that court’s prior
decision in Eolas Technologies Inc. v. Microsoft Corp., 399 F. 3d 1325
(2005), held that software qualifies as a component under §271(f). We
are unable to determine, however, whether the Federal Circuit panels
regarded as a component software in the abstract, or a copy of software.
11 “Component” is commonly defined as “a constituent part,” “ele
ment,” or “ingredient.” Webster’s Third New International Dictionary
of the English Language 466 (1981).
10 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
without physical embodiment, and as such, it does not
match §271(f)’s categorization: “components” amenable to
“combination.” Windows abstracted from a tangible copy
no doubt is information—a detailed set of instructions—
and thus might be compared to a blueprint (or anything
containing design information, e.g., a schematic, template,
or prototype). A blueprint may contain precise instruc
tions for the construction and combination of the compo
nents of a patented device, but it is not itself a combinable
component of that device. AT&T and its amici do not
suggest otherwise. Cf. Pellegrini v. Analog Devices, Inc.,
375 F. 3d 1113, 1117–1119 (CA Fed. 2004) (transmission
abroad of instructions for production of patented computer
chips not covered by §271(f)).
AT&T urges that software, at least when expressed as
machine-readable object code, is distinguishable from
design information presented in a blueprint. Software,
unlike a blueprint, is “modular”; it is a stand-alone prod
uct developed and marketed “for use on many different
types of computer hardware and in conjunction with many
other types of software.” Brief for Respondent 5; Tr. of
Oral Arg. 46. Software’s modularity persists even after
installation; it can be updated or removed (deleted) with
out affecting the hardware on which it is installed. Ibid.
Software, unlike a blueprint, is also “dynamic.” Tr. of Oral
Arg. 46. After a device has been built according to a blue
print’s instructions, the blueprint’s work is done (as AT&T
puts it, the blueprint’s instructions have been “exhausted,”
ibid.). Software’s instructions, in contrast, are contained
in and continuously performed by a computer. Brief for
Respondent 27–28; Tr. of Oral Arg. 46. See also Eolas
Technologies Inc. v. Microsoft Corp., 399 F. 3d 1325, 1339
(CA Fed. 2005) (“[S]oftware code . . . drives the functional
nucleus of the finished computer product.” (quoting Im
agexpo, L. L. C. v. Microsoft Corp., 299 F. Supp. 2d 550,
553 (ED Va. 2003))).
Cite as: 550 U. S. ____ (2007) 11
Opinion of the Court
The distinctions advanced by AT&T do not persuade
us to characterize software, uncoupled from a medium,
as a combinable component. Blueprints too, or any
design information for that matter, can be independently
developed, bought, and sold. If the point of AT&T’s
argument is that we do not see blueprints lining stores’
shelves, the same observation may be made about soft
ware in the abstract: What retailers sell, and consumers
buy, are copies of software. Likewise, before software
can be contained in and continuously performed by a
computer, before it can be updated or deleted, an actual,
physical copy of the software must be delivered by CD
ROM or some other means capable of interfacing with
the computer.12
Because it is so easy to encode software’s instructions
onto a medium that can be read by a computer, AT&T
intimates, that extra step should not play a decisive role
under §271(f). But the extra step is what renders the
software a usable, combinable part of a computer; easy or
not, the copy-producing step is essential. Moreover, many
tools may be used easily and inexpensively to generate the
parts of a device. A machine for making sprockets might
be used by a manufacturer to produce tens of thousands of
sprockets an hour. That does not make the machine a
“component” of the tens of thousands of devices in which
the sprockets are incorporated, at least not under any
ordinary understanding of the term “component.” Con
——————
12 The dissent, embracing AT&T’s argument, contends that, “unlike a
blueprint that merely instructs a user how to do something, software
actually causes infringing conduct to occur.” Post, at 3 (STEVENS, J.,
dissenting). We have emphasized, however, that Windows can “caus[e]
infringing conduct to occur”—i.e., function as part of AT&T’s speech-
processing computer—only when expressed as a computer-readable
copy. Abstracted from a usable copy, Windows code is intangible,
uncombinable information, more like notes of music in the head of a
composer than “a roller that causes a player piano to produce sound.”
Ibid.
12 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
gress, of course, might have included within §271(f)’s
compass, for example, not only combinable “components”
of a patented invention, but also “information, instruc
tions, or tools from which those components readily may
be generated.” It did not. In sum, a copy of Windows, not
Windows in the abstract, qualifies as a “component” under
§271(f).13
C
The next question, has Microsoft “supplie[d] . . . from
the United States” components of the computers here
involved? Under a conventional reading of §271(f)’s text,
the answer would be “No,” for the foreign-made copies of
Windows actually installed on the computers were “sup
plie[d]” from places outside the United States. The Fed
eral Circuit majority concluded, however, that “for soft
ware ‘components,’ the act of copying is subsumed in the
act of ‘supplying.’ ” 414 F. 3d, at 1370. A master sent
abroad, the majority observed, differs not at all from the
exact copies, easily, inexpensively, and swiftly generated
from the master; hence “sending a single copy abroad with
the intent that it be replicated invokes §271(f) liability for
th[e] foreign-made copies.” Ibid.; cf. post, at 2 (STEVENS,
J., dissenting) (“[A] master disk is the functional equiva
lent of a warehouse of components . . . that Microsoft fully
expects to be incorporated into foreign-manufactured
computers.”).
Judge Rader, dissenting, noted that “supplying” is ordi
narily understood to mean an activity separate and dis
——————
13 We need not address whether software in the abstract, or any other
intangible, can ever be a component under §271(f). If an intangible
method or process, for instance, qualifies as a “patented invention”
under §271(f) (a question as to which we express no opinion), the
combinable components of that invention might be intangible as well.
The invention before us, however, AT&T’s speech-processing computer,
is a tangible thing.
Cite as: 550 U. S. ____ (2007) 13
Opinion of the Court
tinct from any subsequent “copying, replicating, or repro
ducing—in effect manufacturing.” 414 F. 3d, at 1372–
1373 (internal quotation marks omitted); see id., at 1373
(“[C]opying and supplying are separate acts with different
consequences—particularly when the ‘supplying’ occurs in
the United States and the copying occurs in Dϋsseldorf or
Tokyo. As a matter of logic, one cannot supply one hun
dred components of a patented invention without first
making one hundred copies of the component . . . .”). He
further observed: “The only true difference between mak
ing and supplying software components and physical
components [of other patented inventions] is that copies of
software components are easier to make and transport.”
Id., at 1374. But nothing in §271(f)’s text, Judge Rader
maintained, renders ease of copying a relevant, no less
decisive, factor in triggering liability for infringement. See
ibid. We agree.
Section 271(f) prohibits the supply of components “from
the United States . . . in such manner as to actively induce
the combination of such components.” §271(f)(1) (emphasis
added). Under this formulation, the very components
supplied from the United States, and not copies thereof,
trigger §271(f) liability when combined abroad to form the
patented invention at issue. Here, as we have repeatedly
noted, see supra, at 1–2, 5–6, the copies of Windows actu
ally installed on the foreign computers were not them
selves supplied from the United States.14 Indeed, those
copies did not exist until they were generated by third
parties outside the United States.15 Copying software
——————
14 In a footnote, Microsoft suggests that even a disk shipped from the
United States, and used to install Windows directly on a foreign com
puter, would not give rise to liability under §271(f) if the disk were
removed after installation. See Brief for Petitioner 37, n. 11; cf. post, at
2–4 (ALITO, J., concurring). We need not and do not reach that issue
here.
15 The dissent analogizes Microsoft’s supply of master versions of
14 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
abroad, all might agree, is indeed easy and inexpensive.
But the same could be said of other items: “Keys or ma
chine parts might be copied from a master; chemical or
biological substances might be created by reproduction;
and paper products might be made by electronic copying
and printing.” Brief for United States as Amicus Curiae
24. See also supra, at 11–12 (rejecting argument similarly
based on ease of copying in construing “component”).
Section 271(f) contains no instruction to gauge when du
plication is easy and cheap enough to deem a copy in fact
made abroad nevertheless “supplie[d] . . . from the United
States.” The absence of anything addressing copying in
the statutory text weighs against a judicial determination
that replication abroad of a master dispatched from the
United States “supplies” the foreign-made copies from the
United States within the intendment of §271(f).16
——————
Windows abroad to “the export of an inventory of . . . knives to be
warehoused until used to complete the assembly of an infringing
machine.” Post, at 2. But as we have underscored, foreign-made copies
of Windows, not the masters Microsoft dispatched from the United
States, were installed on the computers here involved. A more apt
analogy, therefore, would be the export of knives for copying abroad,
with the foreign-made copies “warehoused until used to complete the
assembly of an infringing machine.” Ibid. Without stretching §271(f)
beyond the text Congress composed, a copy made entirely abroad does
not fit the description “supplie[d] . . . from the United States.”
16 Our analysis, while focusing on §271(f)(1), is equally applicable to
§271(f)(2). But cf. post, at 1 (STEVENS, J., dissenting) (asserting “para
graph (2) . . . best supports AT&T’s position here”). While the two
paragraphs differ, among other things, on the quantity of components
that must be “supplie[d] . . . from the United States” for liability to
attach, see infra, at 18, n. 18, that distinction does not affect our
analysis. Paragraph (2), like (1), covers only a “component” amenable
to “combination.” §271(f)(2); see supra, at 9–12 (explaining why Win
dows in the abstract is not a combinable component). Paragraph (2),
like (1), encompasses only the “[s]uppl[y] . . . from the United States” of
“such [a] component” as will itself “be combined outside of the United
States.” §271(f)(2); see supra, at 12–13 and this page (observing that
foreign-made copies of Windows installed on computers abroad were
Cite as: 550 U. S. ____ (2007) 15
Opinion of the Court
D
Any doubt that Microsoft’s conduct falls outside §271(f)’s
compass would be resolved by the presumption against
extraterritoriality, on which we have already touched. See
supra, at 2, 4. The presumption that United States law
governs domestically but does not rule the world applies
with particular force in patent law. The traditional un
derstanding that our patent law “operate[s] only domesti
cally and d[oes] not extend to foreign activities,” Fisch &
Allen, supra, at 559, is embedded in the Patent Act itself,
which provides that a patent confers exclusive rights in an
invention within the United States. 35 U. S. C. §154(a)(1)
(patentee’s rights over invention apply to manufacture,
use, or sale “throughout the United States” and to impor
tation “into the United States”). See Deepsouth, 406 U. S.,
at 531 (“Our patent system makes no claim to extraterri
torial effect”; our legislation “d[oes] not, and [was] not
intended to, operate beyond the limits of the United
States, and we correspondingly reject the claims of others
to such control over our markets.” (quoting Brown, 19
How., at 195)).
As a principle of general application, moreover, we have
stated that courts should “assume that legislators take
account of the legitimate sovereign interests of other
nations when they write American laws.” F. Hoffmann-La
Roche Ltd v. Empagran S. A., 542 U. S. 155, 164 (2004);
see EEOC v. Arabian American Oil Co., 499 U. S. 244, 248
(1991). Thus, the United States accurately conveyed in
this case: “Foreign conduct is [generally] the domain of
foreign law,” and in the area here involved, in particular,
foreign law “may embody different policy judgments about
the relative rights of inventors, competitors, and the pub
——————
not “supplie[d] . . . from the United States”). It is thus unsurprising
that AT&T does not join the dissent in suggesting that the outcome
might turn on whether we view the case under paragraph (1) or (2).
16 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
lic in patented inventions.” Brief for United States as
Amicus Curiae 28. Applied to this case, the presumption
tugs strongly against construction of §271(f) to encompass
as a “component” not only a physical copy of software, but
also software’s intangible code, and to render “supplie[d]
. . . from the United States” not only exported copies of
software, but also duplicates made abroad.
AT&T argues that the presumption is inapplicable
because Congress enacted §271(f) specifically to extend the
reach of United States patent law to cover certain activity
abroad. But as this Court has explained, “the presump
tion is not defeated . . . just because [a statute] specifically
addresses [an] issue of extraterritorial application,” Smith
v. United States, 507 U. S. 197, 204 (1993); it remains
instructive in determining the extent of the statutory
exception. See Empagran, 542 U. S., at 161–162, 164–165;
Smith, 507 U. S., at 204.
AT&T alternately contends that the presumption holds
no sway here given that §271(f), by its terms, applies only
to domestic conduct, i.e., to the supply of a patented inven
tion’s components “from the United States.” §271(f)(1).
AT&T’s reading, however, “converts a single act of supply
from the United States into a springboard for liability
each time a copy of the software is subsequently made
[abroad] and combined with computer hardware [abroad]
for sale [abroad.]” Brief for United States as Amicus
Curiae 29; see 414 F. 3d, at 1373, 1375 (Rader, J., dissent
ing). In short, foreign law alone, not United States law,
currently governs the manufacture and sale of components
of patented inventions in foreign countries. If AT&T
desires to prevent copying in foreign countries, its remedy
today lies in obtaining and enforcing foreign patents. See
Deepsouth, 406 U. S., at 531.17
——————
17 AT&T has secured patents for its speech processor in Canada,
France, Germany, Great Britain, Japan, and Sweden. App. in No. 04–
Cite as: 550 U. S. ____ (2007)
17
Opinion of the Court
IV
AT&T urges that reading §271(f) to cover only those
copies of software actually dispatched from the United
States creates a “loophole” for software makers. Liability
for infringing a United States patent could be avoided, as
Microsoft’s practice shows, by an easily arranged circum
vention: Instead of making installation copies of software
in the United States, the copies can be made abroad,
swiftly and at small cost, by generating them from a mas
ter supplied from the United States. The Federal Circuit
majority found AT&T’s plea compelling:
“Were we to hold that Microsoft’s supply by exporta
tion of the master versions of the Windows® soft
ware—specifically for the purpose of foreign replica
tion—avoids infringement, we would be subverting
the remedial nature of §271(f), permitting a technical
avoidance of the statute by ignoring the advances in
a field of technology—and its associated industry
practices—that developed after the enactment of
§271(f). . . . Section §271(f), if it is to remain effective,
must therefore be interpreted in a manner that is ap
propriate to the nature of the technology at issue.”
414 F. 3d, at 1371.
While the majority’s concern is understandable, we are not
persuaded that dynamic judicial interpretation of §271(f)
is in order. The “loophole,” in our judgment, is properly
left for Congress to consider, and to close if it finds such
action warranted.
There is no dispute, we note again, that §271(f) is inap
plicable to the export of design tools—blueprints, schemat
——————
1285 (CA Fed.), p. 1477. AT&T and its amici do not relate what protec
tions and remedies are, or are not, available under these foreign re
gimes. Cf. Brief for Respondent 46 (observing that “foreign patent
protections are sometimes weaker than their U. S. counterparts”
(emphasis added)).
18 MICROSOFT CORP. v. AT&T CORP.
Opinion of the Court
ics, templates, and prototypes—all of which may provide
the information required to construct and combine over
seas the components of inventions patented under United
States law. See supra, at 10–12. We have no license to
attribute to Congress an unstated intention to place the
information Microsoft dispatched from the United States
in a separate category.
Section 271(f) was a direct response to a gap in our
patent law revealed by this Court’s Deepsouth decision.
See supra, at 4, and n. 3. The facts of that case were
undeniably at the fore when §271(f) was in the congres
sional hopper. In Deepsouth, the items exported were kits
containing all the physical, readily assemblable parts of a
shrimp deveining machine (not an intangible set of in
structions), and those parts themselves (not foreign-made
copies of them) would be combined abroad by foreign
buyers. Having attended to the gap made evident in
Deepsouth, Congress did not address other arguable gaps:
Section 271(f) does not identify as an infringing act con
duct in the United States that facilitates making a compo
nent of a patented invention outside the United States;
nor does the provision check “suppl[ying] . . . from the
United States” information, instructions, or other materi
als needed to make copies abroad.18 Given that Congress
did not home in on the loophole AT&T describes, and in
view of the expanded extraterritorial thrust AT&T’s read
ing of §271(f) entails, our precedent leads us to leave in
Congress’ court the patent-protective determination AT&T
——————
18 Section 271(f)’s text does, in one respect, reach past the facts of
Deepsouth. While Deepsouth exported kits containing all the parts of
its deveining machines, §271(f)(1) applies to the supply abroad of “all or
a substantial portion of” a patented invention’s components. And
§271(f)(2) applies to the export of even a single component if it is
“especially made or especially adapted for use in the invention and not
a staple article or commodity of commerce suitable for substantial
noninfringing use.”
Cite as: 550 U. S. ____ (2007) 19
Opinion of the Court
seeks. Cf. Sony Corp. of America v. Universal City Stu
dios, Inc., 464 U. S. 417, 431 (1984) (“In a case like this, in
which Congress has not plainly marked our course, we
must be circumspect in construing the scope of rights
created by a legislative enactment which never contem
plated such a calculus of interests.”).
Congress is doubtless aware of the ease with which
software (and other electronic media) can be copied, and
has not left the matter untouched. In 1998, Congress
addressed “the ease with which pirates could copy and
distribute a copyrightable work in digital form.” Universal
City Studios, Inc. v. Corley, 273 F. 3d 429, 435 (CA2 2001).
The resulting measure, the Digital Millennium Copyright
Act, 17 U. S. C. §1201 et seq., “backed with legal sanctions
the efforts of copyright owners to protect their works from
piracy behind digital walls such as encryption codes or
password protections.” Universal City Studios, 273 F. 3d,
at 435. If the patent law is to be adjusted better “to ac
count for the realities of software distribution,” 414 F. 3d,
at 1370, the alteration should be made after focused legis
lative consideration, and not by the Judiciary forecasting
Congress’ likely disposition.
* * *
For the reasons stated, the judgment of the Court of
Appeals for the Federal Circuit is
Reversed.
THE CHIEF JUSTICE took no part in the consideration or
decision of this case.
Cite as: 550 U. S. ____ (2007) 1
ALITO, J., concurring in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–1056
_________________
MICROSOFT CORPORATION, PETITIONER v.
AT&T CORP.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[April 30, 2007]
JUSTICE ALITO, with whom JUSTICE THOMAS and
JUSTICE BREYER join, concurring as to all but footnote 14.
I agree with the Court that no “component[s]” of the
foreign-made computers involved in this case were “sup
plie[d]” by Microsoft “from the United States.” 35 U. S. C.
§271(f)(1). I write separately because I reach this conclu
sion through somewhat different reasoning.
I
Computer programmers typically write programs in a
“human readable” programming language. This “ ‘source
code’ ” is then generally converted by the computer into a
“machine readable code” or “machine language” expressed
in a binary format. Brief for Respondent 5, n. 1 (citing R.
White, How Computers Work 87, 94 (8th ed. 2006)); E.
Walters, Essential Guide to Computing 204–205 (2001).
During the Windows writing process, the program exists
in the form of machine readable code on the magnetic tape
fields of Microsoft’s computers’ hard drives. White, supra,
at 144–145; Walters, supra, at 54–55.
When Microsoft finishes writing its Windows program
in the United States, it encodes Windows onto CD-ROMs
known as “ ‘golden masters’ ” in the form of machine read
able code. App. 31, ¶4. This is done by engraving each
disk in a specific way such that another computer can read
2 MICROSOFT CORP. v. AT&T CORP.
ALITO, J., concurring in part
the engravings, understand what they mean, and write
the code onto the magnetic fields of its hard drive. Ibid.;
Brief for Petitioner 4, n. 2.
Microsoft ships these disks (or sends the code via elec
tronic transmission) abroad, where the code is copied onto
other disks that are then placed into foreign-made com
puters for purposes of installing the Windows program.
App. 31–32, ¶¶5–8. No physical aspect of a Windows CD
ROM—original disk or copy—is ever incorporated into the
computer itself. See Stenograph L. L. C. v. Bossard As
socs., Inc., 144 F. 3d 96, 100 (CADC 1998) (noting that,
within the context of the Copyright Act, “installation of
software onto a computer results in ‘copying’ ”); White,
supra, at 144–145, 172–173. The intact CD-ROM is then
removed and may be discarded without affecting the
computer’s implementation of the code.* The parties
agree for purposes of this litigation that a foreign-made
computer containing the Windows code would violate
AT&T’s patent if present in the United States. Pet. for
Cert. 42a, ¶5.
II
A
I agree with the Court that a component of a machine,
whether a shrimp deveiner or a personal computer, must
be something physical. Ante, at 9–11. This is because the
word “component,” when concerning a physical device, is
most naturally read to mean a physical part of the device.
See Webster’s Third New International Dictionary 466
(1976) (component is a “constituent part: INGREDIENT”);
Random House Dictionary of the English Language 301
——————
* In a sense, the whole process is akin to an author living prior to the
existence of the printing press, who created a story in his mind, wrote a
manuscript, and sent it to a scrivener, who in turn copied the story by
hand into a blank book.
Cite as: 550 U. S. ____ (2007) 3
ALITO, J., concurring in part
(1967) (component is “a component part; constituent”).
Furthermore, §271(f) requires that the component be
“combined” with other components to form the infringing
device, meaning that the component must remain a part of
the device. Webster’s, supra, at 452 (combine means “to
join in physical or chemical union”; “to become one”; “to
unite into a chemical compound”); Random House, supra,
at 293 (combine means “to bring or join into a close union
or whole”). For these reasons, I agree with the Court that
a set of instructions on how to build an infringing device,
or even a template of the device, does not qualify as a
component. Ante, at 9–10.
B
As the parties agree, an inventor can patent a machine
that carries out a certain process, and a computer may
constitute such a machine when it executes commands—
given to it by code—that allow it to carry out that process.
Such a computer would not become an infringing device
until enough of the code is installed on the computer to
allow it to execute the process in question. The computer
would not be an infringing device prior to the installation,
or even during the installation. And the computer re
mains an infringing device after the installation process
because, even though the original installation device (such
as a CD-ROM) has been removed from the computer, the
code remains on the hard drive.
III
Here, Windows software originating in the United
States was sent abroad, whether on a master disk or by
means of an electronic transmission, and eventually cop
ied onto the hard drives of the foreign-made computers.
Once the copying process was completed, the Windows
program was recorded in a physical form, i.e., in magnetic
fields on the computers’ hard drives. See Brief for Re
spondent 5. The physical form of the Windows program on
4 MICROSOFT CORP. v. AT&T CORP.
ALITO, J., concurring in part
the master disk, i.e., the engravings on the CD-ROM,
remained on the disk in a form unchanged by the copying
process. See Brief for Petitioner 4, n. 2 (citing White, How
Computers Work, at 144–145, 172–173). There is nothing
in the record to suggest that any physical part of the disk
became a physical part of the foreign-made computer, and
such an occurrence would be contrary to the general work
ings of computers.
Because no physical object originating in the United
States was combined with these computers, there was no
violation of §271(f). Accordingly, it is irrelevant that the
Windows software was not copied onto the foreign-made
computers directly from the master disk or from an elec
tronic transmission that originated in the United States.
To be sure, if these computers could not run Windows
without inserting and keeping a CD-ROM in the appropri
ate drive, then the CD-ROMs might be components of the
computer. But that is not the case here.
* * *
Because the physical incarnation of code on the Win
dows CD-ROM supplied from the United States is not a
“component” of an infringing device under §271(f), it logi
cally follows that a copy of such a CD-ROM also is not a
component. For this reason, I join the Court’s opinion,
except for footnote 14.
Cite as: 550 U. S. ____ (2007) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–1056
_________________
MICROSOFT CORPORATION, PETITIONER v.
AT&T CORP.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[April 30, 2007]
JUSTICE STEVENS, dissenting.
As the Court acknowledges, “[p]lausible arguments can
be made for and against extending §271(f) to the conduct
charged in this case as infringing AT&T’s patent.” Ante,
at 2. Strong policy considerations, buttressed by the
presumption against the application of domestic patent
law in foreign markets, support Microsoft Corporation’s
position. I am, however, persuaded that an affirmance
of the Court of Appeals’ judgment is more faithful to
the intent of the Congress that enacted §271(f) than a
reversal.
The provision was a response to our decision in Deep-
south Packing Co. v. Laitram Corp., 406 U. S. 518 (1972),
holding that a patent on a shrimp deveining machine had
not been infringed by the export of components for assem
bly abroad. Paragraph (1) of §271(f) would have been
sufficient on its own to overrule Deepsouth,* but it is
paragraph (2) that best supports AT&T’s position here. It
——————
* “Whoever without authority supplies or causes to be supplied in or
from the United States all or a substantial portion of the components of
a patented invention, where such components are uncombined in whole
or in part, in such manner as to actively induce the combination of such
components outside of the United States in a manner that would
infringe the patent if such combination occurred within the United
States, shall be liable as an infringer.” 35 U. S. C. §271(f)(1).
2 MICROSOFT CORP. v. AT&T CORP.
STEVENS, J., dissenting
provides:
“Whoever without authority supplies or causes to be
supplied in or from the United States any component
of a patented invention that is especially made or es
pecially adapted for use in the invention and not a
staple article or commodity of commerce suitable for
substantial noninfringing use, where such component
is uncombined in whole or in part, knowing that such
component is so made or adapted and intending that
such component will be combined outside of the
United States in a manner that would infringe the
patent if such combination occurred within the United
States, shall be liable as an infringer.” §271(f)(2).
Under this provision, the export of a specially designed
knife that has no use other than as a part of a patented
deveining machine would constitute infringement. It
follows that §271(f)(2) would cover the export of an inven
tory of such knives to be warehoused until used to com
plete the assembly of an infringing machine.
The relevant component in this case is not a physical
item like a knife. Both Microsoft and the Court think that
means it cannot be a “component.” See ante, at 10. But if
a disk with software inscribed on it is a “component,” I
find it difficult to understand why the most important
ingredient of that component is not also a component.
Indeed, the master disk is the functional equivalent of a
warehouse of components—components that Microsoft
fully expects to be incorporated into foreign-manufactured
computers. Put somewhat differently: On the Court’s
view, Microsoft could be liable under §271(f) only if it
sends individual copies of its software directly from the
United States with the intent that each copy would be
incorporated into a separate infringing computer. But it
seems to me that an indirect transmission via a master
disk warehouse is likewise covered by §271(f).
Cite as: 550 U. S. ____ (2007) 3
STEVENS, J., dissenting
I disagree with the Court’s suggestion that because
software is analogous to an abstract set of instructions, it
cannot be regarded as a “component” within the meaning
of §271(f). See ante, at 9–10. Whether attached or de
tached from any medium, software plainly satisfies the
dictionary definition of that word. See ante, at 9, n. 11
(observing that “ ‘[c]omponent’ is commonly defined as ‘a
constituent part,’ ‘element,’ or ‘ingredient’ ”). And unlike a
blueprint that merely instructs a user how to do some
thing, software actually causes infringing conduct to occur.
It is more like a roller that causes a player piano to pro
duce sound than sheet music that tells a pianist what to
do. Moreover, it is surely not “a staple article or commod
ity of commerce suitable for substantial noninfringing use”
as that term is used in §271(f)(2). On the contrary, its sole
intended use is an infringing use.
I would therefore affirm the judgment of the Court of
Appeals.