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A important situation has reached the U.S. Supreme Court that on the surface could expose high-tech organizations to higher liability for patent infringement in regard to certain merchandise assembled and sold overseas. However, based on the tenor of the comments and questions by a majority of the Justices of the Court during oral arguments, it appears that there will be no significant shift in policy in regard to patent infringement when a product is assembled and sold off the shores of the United States.

Historically, U.S. companies could escape liability for manufacturing and promoting products that developed and sold in the U.S. would constitute actionable patent infringement with no unfavorable consequences. Even so, all of this may change when the U.S. Supreme Court hands down a selection in the seminal case of Microsoft Corporation v. AT&T Corp. The issue in this situation is the actual scope of the exception to the rule imposing liability for patent infringement. That exception had permitted an entity or person to stay away from a patent infringement suit elements for a patented invention were supplied to an assembler in one more nation, supplied the final item was sold in one more nation.

AT&T is arguing in the situation ahead of the nation's highest court that Microsoft is carrying out just that by causing that company's digital speech processor technology to be assembled and sold in an additional nation. Microsoft is countering that no component as contemplated by the law is involved. Rather, Microsoft contends that only directions directing the laptop or computer how to execute the digital speech processing are integrated in the Microsoft package becoming assembled and sold overseas. Microsoft maintains that AT&T demands to obtain foreign patents to shield its interests.

For the duration of oral arguments ahead of the U.S. Supreme Court, Justices Souter and Bryer each expressed concern that a ruling in favor of AT&T would expose several high-tech enterprises to liability below the U.S. patent infringement laws.

The only apparent help for AT&T's position throughout the oral arguments just before the U.S. Supreme Court came from Justice Kennedy. He stated that he did have sympathy for the AT&T position relating to the component situation that was raised just before the Court. The Chief Justice has recused himself from the case.

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