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Antitrust and Trade Regulation

2018

Extraterritoriality

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Brief Amici Curiae Of Intellectual Property Professors In Support Of Petitioner, No. 18-600, Texas Advanced Optoelectronic Solutions, Inc. V. Renesas Electronics America, Inc., Timothy R. Holbrook, Ann Bartow, Andrew Chin, David C. Hricik, Yvette Joy Liebesman, Lucas Osborn Jan 2018

Brief Amici Curiae Of Intellectual Property Professors In Support Of Petitioner, No. 18-600, Texas Advanced Optoelectronic Solutions, Inc. V. Renesas Electronics America, Inc., Timothy R. Holbrook, Ann Bartow, Andrew Chin, David C. Hricik, Yvette Joy Liebesman, Lucas Osborn

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To comply with the obligations of the Uruguay Round Agreements, particularly the Agreement on the Trade Related Aspects of Intellectual Property (TRIPS), Congress amended 35 U.S.C. § 271(a) to make it an act of infringement to “offer to sell” a patented invention within the United States. See Uruguay Round Agreements Act, Pub. L. No. 103-465, §§ 531-533, 108 Stat. 4809 (1994).

The Federal Circuit has interpreted this provision in a manner contrary to the presumption against the extraterritorial reach of United States laws. The Federal Circuit has held that location of the ultimate sale contemplated in the offer controls the …