A previous blog post addressed infringement of method claims, specifically the question whether all the steps must be performed by a single party (the “slimeball”) for infringement to occur (the reader may relax, this is not a quiz). The C.A.F.C. has now taken up the question whether the foreign use of a patented process is an infringement. Cardiac Pacemakers Inc. et al. v. St. Jude Medical Inc. et al.
The law presently provides (35 U.S.C. 271(f)) that one who knowingly supplies a substantial portion of the components of a patented invention, to be assembled abroad, infringes the patent. This statute, clearly, is directed to articles. The question is whether it also applies to methods or processes. In other words, if a party produces a device suited to perform a patented process, and exports the device, and the exported device is operated in a foreign country to practice the patented method, is the exporter an infringer? Obviously, the patent owner believes, or hopes, it is. The trial court thought it was. The C.A.F.C. will now consider the question en banc (all of the judges sitting together – sounds more impressive in Latin).
The case has created quite a stir. Microsoft Corp., Oracle Corp., Cisco Systems Inc., Intel Corp., the American Intellectual Property Law Association and the Federal Circuit Bar Association have all either filed amicus curiae (friend of the court – more Latin) briefs or are seeking permission to do so.
THE LESSON TO BE LEARNED: none yet, although one is coming. Also, it will be interesting to see which position the software companies support.
I agree it will be interesting to see which position the software companies support.
To me it seems like this would be patent infringement.
Anyone else have any comments on patents/patent infringement?
I agree, that I think it is patent infringement. Just because a person goes out of the country, assembles abroad, does not mean he or she is not stealing from someone else.
I'll be watching for this information.