The Supreme Court Denies Rebuttal: Westerngeco and Salvaging Extraterritorial Bars to Patent Liability

Abstract

This note examines the Supreme Court’s decision in Western Geco v Ion Geophysical Corp to uphold lost profit damages predicated on foreign, non-infringing, actions following 35 USC 271(f)(2) liability. This note concludes that the Supreme Court’s use of the RJR Nabisco framework, in rebutting the presumption against extraterritoriality, opens foreign lost profit liability across all modes of 35 USC 271 infringement. Additionally, the note argues that practitioners and judges may restore the presumption’s role by importing comity concerns into a policy-driven proximate cause analysis for future infringement cases.

Keywords: WesternGeco, Patent law, sovereignty, damages, 271(f), comity, patents, patent, supreme court, ION,