[Article / US patents] Extraterritorial application of patent law (龍野文, Patent, November 2023)
更新日：50 分前
Article information
Categories: United States
Topics: Extraterritorial application / Indirect infringement / Damages
Published on this website: 2026-09-29
[Article / US patents] Extraterritorial application of patent law (龍野文, Patent, November 2023)
1. Direct infringement (35 U.S.C. § 271(a))
(1) System inventions (NTP)
Even if some components (servers, etc.) are outside the United States, use is considered domestic if the system is “controlled and beneficially used” in the United States, with its benefits enjoyed there.
(2) Method inventions (NTP)
There is no infringement unless all steps are performed in the United States.
(3) Place of sale (Transocean / Caltech)
Infringement may arise if the future sale is in the United States, regardless of where the offer to sell is made.
Even with delivery abroad, a sale may be regarded as occurring in the United States based on the actual domestic business activities.
2. Export of components (§ 271(f))
(1) Software (Microsoft)
Abstract software code is not a “component.” It may qualify only once stored on a physical medium (CD-ROM, etc.).
(2) Quantity of components (Life Techs)
“All or a substantial portion” in § 271(f)(1) is quantitative. Supplying only one component of a multicomponent invention does not constitute infringement.
(3) Damages (WesternGeco)
Where § 271(f) infringement exists, “foreign lost profits” arising from that infringement may also be recoverable as a domestic application of 35 U.S.C. § 284.
3. Importation of products made by a patented process (§ 271(g))
(1) Limited subject matter (Bayer)
Section 271(g) covers only “physical things.” Importing “information (data)” obtained by practicing a process abroad does not infringe.
(2) Definition of manufacturing (Momenta)
“Made” requires a step creating or changing a product; merely performing a “testing method” is not included.
(3) Single-entity requirement (Syngenta)
Under § 271(a), a single entity must perform all steps of a patented method. Under § 271(g), however, importing or otherwise dealing in the product may incur infringement liability even if several entities divide performance of the process abroad.
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