A recent Law360 article by Daniel Moffett, Karina Moy, and Golda Lai, titled Overlooked Patent Cases: Foreign Activity, Liability, Damages, alerted me to a couple of U.S. District Court decisions that were decided since I completed my article Extraterritorial Damages in Patent Law, 39 Cardozo Arts & Enter. L.J. 1 (2021). If I am understanding the facts correctly, both cases are consistent with my thesis that the logic of the Supreme Court's decision in WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018), leads to the conclusion that, where an act of domestic infringement in violation of 35 U.S.C. § 271(a) is the cause-in-fact and proximate cause of some further activity in another country, a U.S. court should award damages reflecting the loss the patent owner suffers as a result of that foreign activity. The two cases are Centripetal Networks Inc. v. Cisco Systems Inc., ___ F. Supp. 3d ___, 2021 WL 1030286, at *11-12 (E.D. Va. Mar. 17, 2021), and ArcherDX, LLC v. QIAGEN Sciences LLC, C.A. No. 18-1019 (MN), 2021 WL 3857460 (D. Del. Aug. 30, 2021). The court in Centripetal wound up entering a damages award totaling $2.7 billion, including an enhancement and prejudgment interest, and an appeal is pending. (See discussion of a recently-filed amicus brief, addressing the enhanced damages issue, on Law360 here.) Whether the Federal Circuit will weigh in on the extraterritoriality issue, or decide the case on other grounds, of course remains to be seen.
Readers may recall that I also have a draft paper, which should be published sometime early next year, titled Extraterritorial Damages in Copyright Law, 73 Fla. L. Rev. __ (forthcoming 2022). I hope to talk a bit about this topic at UIC John Marshall Law School's upcoming 64th Annual Intellectual Property Law Conference, scheduled to take place (virtually) on November 13.