The Federal Circuit’s current interpretation of a “sale” and “offers to sell” under 35 U.S.C. § 271(a) has permitted vendors that supply components for end products destined for the United States to directly market to and compete for a share of the U.S. market, but simultaneously avoid liability for patent infringement by offshoring all manufacture and delivery of their products. We recently published an article in Law360 discussing how downstream customers from these vendors are likely to bear the brunt of defending more patent suits given that traditional recourse to the customer suit exception or severance under Rule 21 may not be availing. Follow this link to the article.
Read MoreIn June of this year, the Supreme Court issued a decision in WesternGeco LLC v. Ion Geophysical Corp. On its face, the case had minimal potential impact because it was limited to a more rarified form of infringement. Now, however, the District Court in the long-running dispute between Power Integrations and Fairchild Semiconductor has suggested WesternGeco could justify taxing foreign sales for other forms of infringement of a United States patent. And the Court has also kicked this question up to the Federal Circuit to decide. Will damages for infringing a U.S. patent soon reach foreign sales?
Read MoreEvery year, it seems, the Federal Circuit issues a precedential decision on damages, which seems to make the whole process more difficult. The latest of these decisions comes in the long-running patent battle between Power Integrations and Fairchild. In its latest opinion, the Court addresses the entire-market-value rule. The Court essentially guts the rule, and leaves open the question whether there is an reasonable scenario where it will ever be applicable.
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