Forthcoming in The Review of Litigation (2016)
Globalization has prompted the evolution of our d... more Forthcoming in The Review of Litigation (2016)
Globalization has prompted the evolution of our definition of sovereignty. In the patent context, this has arisen amidst a recent focus on the extraterritorial reach of patent remedies. Some of the theoretical challenges are examined in a recent series of decisions of the U.S. Court of Appeals for the Federal Circuit. These decisions evidence the tensions that arise in when transnational conduct is evaluated within the Westphalian framework developed in the 1600’s. In essence, resolving them requires grappling with the problems that arise “where the reality of human interaction, with its plural sources of norms, seems to be chafing against the strictures traditional conceptions of sovereignty impose.” Paul Schiff Berman, From International Law to Globalization, 43 Colum. J. of Transnat’l 485, 528 (2005).
Strict adherence to perfect Westphalian borders is not the current normative world order. Boundaries have become more porous, sometimes through agreement. Treaties, agreements, and other forms of cooperation subject domestic law to external obligations. Another example is the multinational cooperation undertaken to mitigate the impact of climate change, which is an inherently global phenomenon. Corporations engage in global commerce, wield influence over foreign governments, and engage in activities that influence foreign economies. Foreign intervention is justified to address human rights violations and, in some cases, security. Other rationales have been asserted to extend U.S. law beyond its shores. For example, the Supreme Court has authorized extraterritorial jurisdiction for the federal courts to hear petitions for habeas corpus brought by prisoners in Guantanamo Bay, in part because the U.S. had exercised “complete jurisdiction and control” over the territory and acted as the petitioners’ custodians. All of these examples represent shifts in the law’s treatment of territorial reach.
Recently, a series of appellate cases have considered extraterritoriality of the nation's intellectual property laws. This paper considers these cases in their international context. Although this line of extraterritoriality cases turns on the interpretation of a domestic statute, 35 U.S.C. section 284, the issues raised cannot be fully resolved without understanding the global implications. Essentially, there are several difficulties that arise when damages for infringement of a U.S. patent are authorized for overseas conduct. Among others, such a solution would be contrary to over a century of law that establishes that such conduct is legal. Further, extraterritorial damages are contrary to the structure and purpose of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”), and likely to introduce economic distortions. Further, there are difficulties are identified as “the legitimacy of unilateralism by a handful of nations seeking to impose their legal and regulatory will over the entire globe.”
This Article considers several related points about the recent changes to the patent system and t... more This Article considers several related points about the recent changes to the patent system and the opportunities for entrepreneurship. The concern about the adverse effect of the recent changes to patent law on innovation may be overstated. As a practical matter, the concept that patents are a necessary input to innovation is built on a model that does not account for the complex relationship between this legal system, science, and innovation. Although it can be expected that there may be some adverse impacts from these decisions, this trend opens up the opportunity for entrepreneurship. By releasing more foundational information into the public domain, there is a real possibility that innovative efforts by new firms will be encouraged. Further, innovation over the long term has positive effects on scientific investigation. In some respects, the practical necessities have led to innovation in the past and, in some instances, inspired new forms of scientific investigation. To the ex...
The U.S. Supreme Court's WesternGeco LLC v. ION Geophysical Corp. decision provides the opportuni... more The U.S. Supreme Court's WesternGeco LLC v. ION Geophysical Corp. decision provides the opportunity to open a policy space for proximate cause in patent litigation. As the country's highest Court has pushed patent law, as well as other statutory torts, in the same direction as other civil causes of action, the full adoption of proximate cause in all monetary forms of recovery appears to be inevitable. At this time, a full adoption of this complex, multidimensional requirement will allow the patent system to resolve several troubling existing problems, including the appropriate extraterritorial reach of the system. Properly implemented, proximate cause in patent law can resolve other difficulties that are explored in this article. These include accounting for the social benefits of infringing implementations, the multiple serial plaintiff problem, and the problem of patent infringement actions brought against end-user consumers as some examples. As the patent system joins other civil causes of action in implementing proximate cause, it is likely that other problems can be implemented and resolved so long as the standard is modified to account for the unique policy problems of the patent system.
Comparative Political Economy: Regulation eJournal, 2021
This Article considers the intersection of the piracy paradox in the context of the attention eco... more This Article considers the intersection of the piracy paradox in the context of the attention economy, the algorithmic behavior of content platforms, and intellectual property’s incentive theory. This inquiry is framed by a micro-history of a micro-dispute between two micro-celebrities about a color-block sweatshirt design of debatable originality. Because purchases are largely made to engage and support the creator as interactive communication, the arguments for legal protection for influencer merchandise are weak. Therefore, this field appears to be an ideal space for the operation of the piracy paradox.<br><br>This conclusion might be persuasive if anti-copying norms or other considerations minimized copying incentives. However, such norms are fragile in this space for a number of reasons. Aggravating this, YouTube’s algorithm pushes influencers toward conflict to strengthen engagement and their digital reputations. This leads to a difficult circumstance where low-IP ...
... Part I surveys the tradition of artists' rights protection to give an historic framework... more ... Part I surveys the tradition of artists' rights protection to give an historic framework to the analysis. Part II exam-ines the Act itself. ... Raymond Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 Am. J. Comp. L. 465, 478 (1968). 19. ...
Global Issues in Patent Law provides an approachable and engaging entry point for students of pat... more Global Issues in Patent Law provides an approachable and engaging entry point for students of patent law and intellectual property to the world of international patents. Beginning with a discussion of current international intellectual property institutions and ending with a study of contemporary border enforcement issues, the book takes the user through the major treaties and a comparative discussion of the critical areas of patent law and practice. Topics covered include: patentable subject matter, prior art, inventive step, enablement and disclosure, infringement, remedies, and competition policy. The approach of the book and its materials would complement intellectual property law courses at the basic, intermediate, and advanced levels as well as serve as the focal casebook for a stand alone course on international patent law. For more information visit the companion site .
The controversy surrounding the current implementation of the patent system is well known. Some q... more The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated in 1958, "[i]f we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present ...
A number of settlements and jury awards in the past several years have generated widely disparate... more A number of settlements and jury awards in the past several years have generated widely disparate, and sometimes breathtakingly high, awards in patent infringement cases. At the same time, courts have failed to provide consistent and concrete standards for valuing an infringer's use of an invention. This state of affairs has caused patent litigation to bear a troubling resemblance to a Las Vegas casino. Perhaps unsurprisingly, a secondary market for patents has developed that seeks to turn patents into profit centers. Specifically, entities have been created to acquire patents in order to assert them in the hopes of obtaining a large monetary award or settlement. In an effort to more accurately align legal standards with the value of the use of a patented invention, Congress has proposed legislation that would require fact-finders to apportion the value of the patent against the infringer's own contribution to the accused infringing product. Although Congress's view is a...
This book is designed to facilitate the introduction of international, transnational, and compara... more This book is designed to facilitate the introduction of international, transnational, and comparative law issues into a domestic Intellectual Property course. The book is very accessible for law students and their professors. The book can be assigned or recommended as optional reading to supplement a domestic-only course to advance the students' understanding of their own system. For more information visit the companion site .
Patents are intended to be used as instruments to further policy. One potent policy driver to acc... more Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term "invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the U.S., the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are implementable. Despite this potential power, recent U.S. Supreme Court opinions have not used the doctrine to meaningfully guide the patent system. Rather, the Court's recent cases place primary emphasis on a selection of precedents that were written in an era that does not account for our curr...
Patent law is intended to promote the creativity of scientists and engi-neers. The system recogni... more Patent law is intended to promote the creativity of scientists and engi-neers. The system recognizes that the work of the individual is the engine that ultimately increases the state of scientific knowledge. As economist Paul Romer recognized, “Technological advance comes from things that people do.” Furthering creativity represents the constitutional, theoretical and doc-trinal heart of patent law. Yet the field has not meaningfully evaluated the fundamental question of what creativity is. Using theories from psychology, sociology, history and the philosophy of science, this work examines and pro-poses how patent law can formulate a legal conception of creativity.To undertake this inquiry, this work focuses on the U.S. Supreme Court’s KSR International Co. v. Teleflex Inc. decision. When considering the appropriate standard for assessing nonobviousness under 35 U.S.C. § 103, the KSR Court used the phrase “ordinary creativity” to refer to the capabilities of the person of ordinary s...
The recognition that innovation drives the creation of new knowledge is both significant and an u... more The recognition that innovation drives the creation of new knowledge is both significant and an underappreciated aspect of patent theory. A full assessment of the impact of the most recent recent patentability standards cannot be performed without examining the relationships between science, the patent system, and innovation within a more realistic context. To do so, the system must loosen its hold on the linear model of innovation.
More broadly, these insights allow us to think about the patent system in ways that do not echo the traditional narrative that places science and innovation at the opposite ends of a continuum. As a practical matter, this more realistic framework suggests that recent shifts in patent law can do much to foster entrepreneurial creativity. The innovation that flows from this work can, in turn, operate in ways that can ultimately drive more scientific inquiry.
Patents are intended to be used as instruments to further policy. One potent policy driver to acc... more Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term " invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the United States, the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are implementable. Despite this potential power, recent U.S. Supreme Court opinions have not used the doctrine to meaningfully guide the patent system. Rather, the Court's recent cases place primary emphasis on a selection of precedents that were written in an era that does not account for our current understandings of scientific, economic, and sociologic progress. This Article argues that these are missed opportunities and proposes four policy guideposts for consideration in future cases: (1) fostering scientific creativity; (2) encouraging the creation of an infrastructure; (3) balancing the patent system with free competition concerns; and (4) considering current social needs.
Forthcoming in The Review of Litigation (2016)
Globalization has prompted the evolution of our d... more Forthcoming in The Review of Litigation (2016)
Globalization has prompted the evolution of our definition of sovereignty. In the patent context, this has arisen amidst a recent focus on the extraterritorial reach of patent remedies. Some of the theoretical challenges are examined in a recent series of decisions of the U.S. Court of Appeals for the Federal Circuit. These decisions evidence the tensions that arise in when transnational conduct is evaluated within the Westphalian framework developed in the 1600’s. In essence, resolving them requires grappling with the problems that arise “where the reality of human interaction, with its plural sources of norms, seems to be chafing against the strictures traditional conceptions of sovereignty impose.” Paul Schiff Berman, From International Law to Globalization, 43 Colum. J. of Transnat’l 485, 528 (2005).
Strict adherence to perfect Westphalian borders is not the current normative world order. Boundaries have become more porous, sometimes through agreement. Treaties, agreements, and other forms of cooperation subject domestic law to external obligations. Another example is the multinational cooperation undertaken to mitigate the impact of climate change, which is an inherently global phenomenon. Corporations engage in global commerce, wield influence over foreign governments, and engage in activities that influence foreign economies. Foreign intervention is justified to address human rights violations and, in some cases, security. Other rationales have been asserted to extend U.S. law beyond its shores. For example, the Supreme Court has authorized extraterritorial jurisdiction for the federal courts to hear petitions for habeas corpus brought by prisoners in Guantanamo Bay, in part because the U.S. had exercised “complete jurisdiction and control” over the territory and acted as the petitioners’ custodians. All of these examples represent shifts in the law’s treatment of territorial reach.
Recently, a series of appellate cases have considered extraterritoriality of the nation's intellectual property laws. This paper considers these cases in their international context. Although this line of extraterritoriality cases turns on the interpretation of a domestic statute, 35 U.S.C. section 284, the issues raised cannot be fully resolved without understanding the global implications. Essentially, there are several difficulties that arise when damages for infringement of a U.S. patent are authorized for overseas conduct. Among others, such a solution would be contrary to over a century of law that establishes that such conduct is legal. Further, extraterritorial damages are contrary to the structure and purpose of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”), and likely to introduce economic distortions. Further, there are difficulties are identified as “the legitimacy of unilateralism by a handful of nations seeking to impose their legal and regulatory will over the entire globe.”
This Article considers several related points about the recent changes to the patent system and t... more This Article considers several related points about the recent changes to the patent system and the opportunities for entrepreneurship. The concern about the adverse effect of the recent changes to patent law on innovation may be overstated. As a practical matter, the concept that patents are a necessary input to innovation is built on a model that does not account for the complex relationship between this legal system, science, and innovation. Although it can be expected that there may be some adverse impacts from these decisions, this trend opens up the opportunity for entrepreneurship. By releasing more foundational information into the public domain, there is a real possibility that innovative efforts by new firms will be encouraged. Further, innovation over the long term has positive effects on scientific investigation. In some respects, the practical necessities have led to innovation in the past and, in some instances, inspired new forms of scientific investigation. To the ex...
The U.S. Supreme Court's WesternGeco LLC v. ION Geophysical Corp. decision provides the opportuni... more The U.S. Supreme Court's WesternGeco LLC v. ION Geophysical Corp. decision provides the opportunity to open a policy space for proximate cause in patent litigation. As the country's highest Court has pushed patent law, as well as other statutory torts, in the same direction as other civil causes of action, the full adoption of proximate cause in all monetary forms of recovery appears to be inevitable. At this time, a full adoption of this complex, multidimensional requirement will allow the patent system to resolve several troubling existing problems, including the appropriate extraterritorial reach of the system. Properly implemented, proximate cause in patent law can resolve other difficulties that are explored in this article. These include accounting for the social benefits of infringing implementations, the multiple serial plaintiff problem, and the problem of patent infringement actions brought against end-user consumers as some examples. As the patent system joins other civil causes of action in implementing proximate cause, it is likely that other problems can be implemented and resolved so long as the standard is modified to account for the unique policy problems of the patent system.
Comparative Political Economy: Regulation eJournal, 2021
This Article considers the intersection of the piracy paradox in the context of the attention eco... more This Article considers the intersection of the piracy paradox in the context of the attention economy, the algorithmic behavior of content platforms, and intellectual property’s incentive theory. This inquiry is framed by a micro-history of a micro-dispute between two micro-celebrities about a color-block sweatshirt design of debatable originality. Because purchases are largely made to engage and support the creator as interactive communication, the arguments for legal protection for influencer merchandise are weak. Therefore, this field appears to be an ideal space for the operation of the piracy paradox.<br><br>This conclusion might be persuasive if anti-copying norms or other considerations minimized copying incentives. However, such norms are fragile in this space for a number of reasons. Aggravating this, YouTube’s algorithm pushes influencers toward conflict to strengthen engagement and their digital reputations. This leads to a difficult circumstance where low-IP ...
... Part I surveys the tradition of artists' rights protection to give an historic framework... more ... Part I surveys the tradition of artists' rights protection to give an historic framework to the analysis. Part II exam-ines the Act itself. ... Raymond Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 Am. J. Comp. L. 465, 478 (1968). 19. ...
Global Issues in Patent Law provides an approachable and engaging entry point for students of pat... more Global Issues in Patent Law provides an approachable and engaging entry point for students of patent law and intellectual property to the world of international patents. Beginning with a discussion of current international intellectual property institutions and ending with a study of contemporary border enforcement issues, the book takes the user through the major treaties and a comparative discussion of the critical areas of patent law and practice. Topics covered include: patentable subject matter, prior art, inventive step, enablement and disclosure, infringement, remedies, and competition policy. The approach of the book and its materials would complement intellectual property law courses at the basic, intermediate, and advanced levels as well as serve as the focal casebook for a stand alone course on international patent law. For more information visit the companion site .
The controversy surrounding the current implementation of the patent system is well known. Some q... more The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated in 1958, "[i]f we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present ...
A number of settlements and jury awards in the past several years have generated widely disparate... more A number of settlements and jury awards in the past several years have generated widely disparate, and sometimes breathtakingly high, awards in patent infringement cases. At the same time, courts have failed to provide consistent and concrete standards for valuing an infringer's use of an invention. This state of affairs has caused patent litigation to bear a troubling resemblance to a Las Vegas casino. Perhaps unsurprisingly, a secondary market for patents has developed that seeks to turn patents into profit centers. Specifically, entities have been created to acquire patents in order to assert them in the hopes of obtaining a large monetary award or settlement. In an effort to more accurately align legal standards with the value of the use of a patented invention, Congress has proposed legislation that would require fact-finders to apportion the value of the patent against the infringer's own contribution to the accused infringing product. Although Congress's view is a...
This book is designed to facilitate the introduction of international, transnational, and compara... more This book is designed to facilitate the introduction of international, transnational, and comparative law issues into a domestic Intellectual Property course. The book is very accessible for law students and their professors. The book can be assigned or recommended as optional reading to supplement a domestic-only course to advance the students' understanding of their own system. For more information visit the companion site .
Patents are intended to be used as instruments to further policy. One potent policy driver to acc... more Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term "invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the U.S., the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are implementable. Despite this potential power, recent U.S. Supreme Court opinions have not used the doctrine to meaningfully guide the patent system. Rather, the Court's recent cases place primary emphasis on a selection of precedents that were written in an era that does not account for our curr...
Patent law is intended to promote the creativity of scientists and engi-neers. The system recogni... more Patent law is intended to promote the creativity of scientists and engi-neers. The system recognizes that the work of the individual is the engine that ultimately increases the state of scientific knowledge. As economist Paul Romer recognized, “Technological advance comes from things that people do.” Furthering creativity represents the constitutional, theoretical and doc-trinal heart of patent law. Yet the field has not meaningfully evaluated the fundamental question of what creativity is. Using theories from psychology, sociology, history and the philosophy of science, this work examines and pro-poses how patent law can formulate a legal conception of creativity.To undertake this inquiry, this work focuses on the U.S. Supreme Court’s KSR International Co. v. Teleflex Inc. decision. When considering the appropriate standard for assessing nonobviousness under 35 U.S.C. § 103, the KSR Court used the phrase “ordinary creativity” to refer to the capabilities of the person of ordinary s...
The recognition that innovation drives the creation of new knowledge is both significant and an u... more The recognition that innovation drives the creation of new knowledge is both significant and an underappreciated aspect of patent theory. A full assessment of the impact of the most recent recent patentability standards cannot be performed without examining the relationships between science, the patent system, and innovation within a more realistic context. To do so, the system must loosen its hold on the linear model of innovation.
More broadly, these insights allow us to think about the patent system in ways that do not echo the traditional narrative that places science and innovation at the opposite ends of a continuum. As a practical matter, this more realistic framework suggests that recent shifts in patent law can do much to foster entrepreneurial creativity. The innovation that flows from this work can, in turn, operate in ways that can ultimately drive more scientific inquiry.
Patents are intended to be used as instruments to further policy. One potent policy driver to acc... more Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term " invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the United States, the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are implementable. Despite this potential power, recent U.S. Supreme Court opinions have not used the doctrine to meaningfully guide the patent system. Rather, the Court's recent cases place primary emphasis on a selection of precedents that were written in an era that does not account for our current understandings of scientific, economic, and sociologic progress. This Article argues that these are missed opportunities and proposes four policy guideposts for consideration in future cases: (1) fostering scientific creativity; (2) encouraging the creation of an infrastructure; (3) balancing the patent system with free competition concerns; and (4) considering current social needs.
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Drafts by Amy Landers
Globalization has prompted the evolution of our definition of sovereignty. In the patent context, this has arisen amidst a recent focus on the extraterritorial reach of patent remedies. Some of the theoretical challenges are examined in a recent series of decisions of the U.S. Court of Appeals for the Federal Circuit. These decisions evidence the tensions that arise in when transnational conduct is evaluated within the Westphalian framework developed in the 1600’s. In essence, resolving them requires grappling with the problems that arise “where the reality of human interaction, with its plural sources of norms, seems to be chafing against the strictures traditional conceptions of sovereignty impose.” Paul Schiff Berman, From International Law to Globalization, 43 Colum. J. of Transnat’l 485, 528 (2005).
Strict adherence to perfect Westphalian borders is not the current normative world order. Boundaries have become more porous, sometimes through agreement. Treaties, agreements, and other forms of cooperation subject domestic law to external obligations. Another example is the multinational cooperation undertaken to mitigate the impact of climate change, which is an inherently global phenomenon. Corporations engage in global commerce, wield influence over foreign governments, and engage in activities that influence foreign economies. Foreign intervention is justified to address human rights violations and, in some cases, security. Other rationales have been asserted to extend U.S. law beyond its shores. For example, the Supreme Court has authorized extraterritorial jurisdiction for the federal courts to hear petitions for habeas corpus brought by prisoners in Guantanamo Bay, in part because the U.S. had exercised “complete jurisdiction and control” over the territory and acted as the petitioners’ custodians. All of these examples represent shifts in the law’s treatment of territorial reach.
Recently, a series of appellate cases have considered extraterritoriality of the nation's intellectual property laws. This paper considers these cases in their international context. Although this line of extraterritoriality cases turns on the interpretation of a domestic statute, 35 U.S.C. section 284, the issues raised cannot be fully resolved without understanding the global implications. Essentially, there are several difficulties that arise when damages for infringement of a U.S. patent are authorized for overseas conduct. Among others, such a solution would be contrary to over a century of law that establishes that such conduct is legal. Further, extraterritorial damages are contrary to the structure and purpose of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”), and likely to introduce economic distortions. Further, there are difficulties are identified as “the legitimacy of unilateralism by a handful of nations seeking to impose their legal and regulatory will over the entire globe.”
Papers by Amy Landers
More broadly, these insights allow us to think about the patent system in ways that do not echo the traditional narrative that places science and innovation at the opposite ends of a continuum. As a practical matter, this more realistic framework suggests that recent shifts in patent law can do much to foster entrepreneurial creativity. The innovation that flows from this work can, in turn, operate in ways that can ultimately drive more scientific inquiry.
Globalization has prompted the evolution of our definition of sovereignty. In the patent context, this has arisen amidst a recent focus on the extraterritorial reach of patent remedies. Some of the theoretical challenges are examined in a recent series of decisions of the U.S. Court of Appeals for the Federal Circuit. These decisions evidence the tensions that arise in when transnational conduct is evaluated within the Westphalian framework developed in the 1600’s. In essence, resolving them requires grappling with the problems that arise “where the reality of human interaction, with its plural sources of norms, seems to be chafing against the strictures traditional conceptions of sovereignty impose.” Paul Schiff Berman, From International Law to Globalization, 43 Colum. J. of Transnat’l 485, 528 (2005).
Strict adherence to perfect Westphalian borders is not the current normative world order. Boundaries have become more porous, sometimes through agreement. Treaties, agreements, and other forms of cooperation subject domestic law to external obligations. Another example is the multinational cooperation undertaken to mitigate the impact of climate change, which is an inherently global phenomenon. Corporations engage in global commerce, wield influence over foreign governments, and engage in activities that influence foreign economies. Foreign intervention is justified to address human rights violations and, in some cases, security. Other rationales have been asserted to extend U.S. law beyond its shores. For example, the Supreme Court has authorized extraterritorial jurisdiction for the federal courts to hear petitions for habeas corpus brought by prisoners in Guantanamo Bay, in part because the U.S. had exercised “complete jurisdiction and control” over the territory and acted as the petitioners’ custodians. All of these examples represent shifts in the law’s treatment of territorial reach.
Recently, a series of appellate cases have considered extraterritoriality of the nation's intellectual property laws. This paper considers these cases in their international context. Although this line of extraterritoriality cases turns on the interpretation of a domestic statute, 35 U.S.C. section 284, the issues raised cannot be fully resolved without understanding the global implications. Essentially, there are several difficulties that arise when damages for infringement of a U.S. patent are authorized for overseas conduct. Among others, such a solution would be contrary to over a century of law that establishes that such conduct is legal. Further, extraterritorial damages are contrary to the structure and purpose of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”), and likely to introduce economic distortions. Further, there are difficulties are identified as “the legitimacy of unilateralism by a handful of nations seeking to impose their legal and regulatory will over the entire globe.”
More broadly, these insights allow us to think about the patent system in ways that do not echo the traditional narrative that places science and innovation at the opposite ends of a continuum. As a practical matter, this more realistic framework suggests that recent shifts in patent law can do much to foster entrepreneurial creativity. The innovation that flows from this work can, in turn, operate in ways that can ultimately drive more scientific inquiry.