Should Foreign Patent Law Matter?

Abstract:     
In the last twenty years, there have been considerable changes in United States patent law. Most of these changes have been somewhat top-down in nature, meaning that the impetus for the changes came from our international treaty obligations or from an interest in harmonizing our laws with those of our trading partners. Consequently, domestic patent law is increasingly a mix of domestic and international considerations. Concurrently, international borders have become more porous as a result of increased manufacturing of goods to be imported into the United States as well as technological innovations such as the Internet. These global changes have created pressures for the U.S. patent system, which is still nationally rooted. As a result, the courts increasingly have to address issues that transcend traditional, national borders. From cross-border infringement to interpretations of the patent statute that have their genesis in the Agreement on Trade Related Aspects of Intellectual Property, courts have to decide whether to consider these international dynamics. This symposium article confronts this dynamic squarely, noting areas where the courts have, might, and should consider foreign patent law. It also addresses the Supreme Court’s recent decision in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010), where the Supreme Court appears to have ratcheted up the presumption against the extraterritorial application of U.S. laws. In the patent and International Trade Commission contexts, Morrison generally should have a limited impact given the international context in which our patent system operates.

Number of Pages in PDF File: 28

Keywords: patent, extraterritoriality, international trade commission, Morrison v. national australia, america invents act, patent reform, territoriality, prior art, patent infringement, infringement, prosecution history estoppel, prosecution history, inequitable conduct, tianrui

Accepted Paper Series