Undampened Oscillations in the Circuit: Combining the Components of 271(f) Doctrine Supplied by the Federal Circuit

Benjamin J. Byer


Recent Federal Circuit interpretations of patent infringement laws that control cross-border activities appear to be tangled and conflicting because they are not based upon any underlying doctrine. In this note I attempt to unravel and
synthesize current case law into a cogent set of principles. I demonstrate that, although the case law delineates a coherent doctrine, this doctrine is by no means ideal or well-settled due primarily to the fact that method claims are
included in the purvey of a statute not originally enacted to regulate such inventions. This over breadth causes many tensions that require complex rules, such as the detailed doctrine necessary to properly determine component status of tangible products in relation to a process invention. In
some cases, these rules reinforce the underlying doctrine by correctly excluding certain situations from the creation of § 271(f) liability. This is done, however, at the great cost of complexity and awkwardness. These problems have not only increased the inherent tension in § 271(f) doctrine, but
have also unsettled the Federal Circuit itself, resulting in the issuance of contentious dissenting opinions acknowledging the shortcomings of the current majority. This paper shows that although it is possible to coherently synthesize current C.A.F.C. § 271(f) case law, the resulting rules leave the
doctrine in a precarious position that will not stabilize as long as § 271(f) governs process inventions.

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DOI: https://doi.org/10.5195/tlp.2007.30


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