Originally Posted by rob.rice
Given that there must be abstractions, where can we draw the dividing line between the abstract and the real material worthy of protection? The Court ruled that line does not extend even an inch into the abstract realm – effectively stating that abstract code (essentially source code by another name) cannot be afforded such protection.
Specifically, a real component could be combined with a computer directly to become something worth protecting. But if you can’t plug it in and turn it on –- for instance, if it needs to be interpreted or compiled first –- then it’s not real yet.
That's not how I read the opinion. The majority opinion does not go so far as to say software must be physical. In fact, footnote 13 states:
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.
The only part of the opinion to go so far as to say only physical copies qualify as components is the concurring opinion written by Alito and joined by Thomas and Breyer. As a concurring opinion, it is not binding on lower courts.
What I see this decision doing is shifting responsibility--from developers to end users. If an end user compiles and installs software that infringes a patent, the end user is personally liable for the infringement. However, distributors of precompiled binaries (i.e. packages such as .deb, .rpm, etc.) might still have some infringement liability.
Originally Posted by rob.rice
nobody can patend source code dig it
I can help but wonder what this dose to software patends
witch are patends on concepts something even more abstract
than source code
I don't think this has any effect of the existence of software patents. Software patents are considered a "process" under the Patent Act (I don't have a case citation for that at the moment). If the intent of this decision were to remove software from patentability, it would have been specifically announced because that would be a significant shift.
This opinion, therefore is specifically limited to whether software qualifies as a "component" in § 271(f). Whether it's a component versus whether it's patentable are completely different questions.
I imagine the result of this case will be a legislative response. The court, in my opinion, invited the legislature to amend the law. The court stated it recognized the "loophole" mentioned by the lower courts because of the ease software is copied, and that the loophole was a legitimate concern. However, the way the law is written now
compels the Supreme Court to reach the decision they did.
All this is from an initial reading of the opinion and without a lot of time to analyze it.