Comment by Nicolette S. Kraska
The Supreme Court's June 2018 decision in WesternGeco LLC v. ION Geophysical Corp. signaled a major attitudinal shift toward the longstanding presumption against extraterritoriality. The Court addressed patent infringement damages under the Patent Act and broke with a long line of jurisprudence established by United States Court of Appeals for the Federal Circuit. The Court held that a patentee is entitled to recover lost profits incurred extraterritorially under the Patent Act, rejecting the Federal Circuit's stance on this issue. WesternGeco also presented a unique scenario where alleged infringement takes place on the high seas—an area where no nation has exclusive jurisdiction. Although WesternGeco clarified remedies available under the Patent Act, the purposely narrow decision introduced a number of questions that practitioners and lower courts must now address. This Comment explores the history of the Patent Act and the extraterritorial application of U.S. statutes. Then, the Comment examines the WesternGeco decision in depth and the Federal Circuit’s lost profit damages jurisprudence. Finally, the Comment addresses the complex issues presented by WesternGeco, as well as recent effects of the decision on lower courts and patent litigation.
About the Author
Nicolette S. Kraska: J.D. candidate 2020, Tulane University Law School; B.A. 2013, Emory University.
Citation
94 Tul. L. Rev. 611 (2020)