Federal Circuit Reconsiders Extraterritorial Patent Damages

The Federal Circuit’s recent decision in Brumfield v. IBG LLC suggests that U.S. patent holders may be able to obtain damages for foreign activities that flow from domestic acts of infringement proscribed by 35 U.S.C. § 271(a). This is a new development: as the Federal Circuit explained, the Supreme Court’s extraterritoriality analysis in WesternGeco LLC v. ION Geophysical Corp. (2018), which considered the availability of foreign damages under 35 U.S.C. § 271(f), has effectively displaced the Federal Circuit’s analysis in Power Integrations Inc. v. Fairchild Semiconductor International, Inc. (2013), which had strictly limited foreign damages under 35 U.S.C. § 271(a).

TLB contributing author Tim Holbrook, who is an expert on extraterritoriality in intellectual property law, has described and analyzed the Federal Circuit’s decision in Brumfield over at PatentlyO.