On April 16, 2018, the U.S. Supreme Court heard arguments in WesternGeco v. ION Geophysical, a case raising important issues about the extraterritorial reach of U.S. patent law—namely, whether a patentee can recover lost profits stemming from the non-infringing use, outside the United States, of a system found to infringe domestically under §271(f) of the Patent Act. 138 S. Ct. 734, petition for cert. granted, No. 16-1011 (Jan. 12, 2018).
Claims for patent infringement are most commonly pursued under 35 U.S.C. §271(a), which provides that, “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. §271(a) (emphasis added). This obviously limits liability to domestic acts; foreign use of a patented invention—i.e., use occurring outside the United States, does not constitute infringement under §271(a), and thus patentees cannot recover damages for such use. See id.
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