Legally Speaking: Software Patents and the Metaphysics of 271(f)

Intellectual Property and Patents

Article Snapshot


Pamela Samuelson


Communications of the ACM, Vol. 50, June 2007


This paper looks at how the law views the export of computer software.

Policy Relevance

Law is often written assuming that valuable assets are physical things. Software is not a tangible object like an engine part. The law, including patent law, should adapt to recognize special qualities of software.

Main Points

  • The Supreme Court considered the case of Microsoft Corp. v. AT&T Corp, concerning Microsoft’s liability for exporting many unauthorized copies of some computer code in software.


  • The law says that the exporter should pay damages for each “component.” Is each copy of the software a “component?”


  • Copies of software should not be a considered a component because they are not tangible assets.


  • The Supreme Court, recognizing this, might be willing to question the patentability of software generally.

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