“(1) Whether digital software code—an intangible sequence of ‘1’s’ and ‘0’s’—may be considered a ‘component[] of a patented invention’ within the meaning of [35 U.S.C. §] 271(f)(1); and, if so, (2) Whether copies of such a ‘component[]’ made in foreign country are ‘supplie[d]… from the United States.’”
(1) “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 uncombinable. 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.’” (2) “Section 271(f) prohibits the supply of components ‘from the United States . . . in such manner as to actively induce the combination of such components.’ 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.”
