Abstract:
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.”
