Walking the Line: Why the Presumption Against Extraterritorial Application of U.S. Patent Law Should Limit the Reach of 35 U.S.C. § 271(f)

By: Jennifer Giordano-Coltart

The advent of the digital era and the global market pose unique challenges to intellectual property law. To adapt, U.S. patent laws require constant interpretation in the face of rapidly changing technological advances. In AT&T Corp. v. Microsoft Corp., the Federal Circuit interpreted 35 U.S.C. § 271(f) in a technology-dependent manner in order to effectuate the purpose of the law with respect to global software distribution. However, the Federal Circuit failed to consider the presumption against extraterritorial application of U.S. law, and its decision now risks international discord and harm not only to the American software industry, but other U.S. industries as well. This iBrief critiques the lower court decisions in AT&T Corp. v. Microsoft Corp. in light of the presumption against extraterritoriality, and analyzes how the Supreme Court should apply the presumption in its review of the case.

Cite: 2007 Duke L. & Tech. Rev. 0004

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