U.s. Infringement Liability for Foreign Sellers of Infringing Products

IMPORTATION AS AN EXCLUSIVE RIGHT ¶1 Making, selling, or using a U.S.-patented product or process in a foreign country does not infringe the United States patent. United States law cannot govern in other countries, and the patentee’s remedy is therefore dependent on the laws of the relevant foreign country. But when the patented product (or the product of the patented process) is brought into the United States, U.S. law has the authority to provide a remedy. ¶2 Prior to 1988, importation was not one of a patent holder’s exclusive rights under U.S. patent law. The 1988 Process Patent Amendment Act added section 271(g) to the Patent Act, making the importation of a product made by a patented process an act of infringement. However, it was not until 1996 that the Patent Act was effectively amended to add importation of a patented product as an exclusive right. This amendment was made as a result of the Trade-Related Aspects of Intellectual Property (“TRIPS”) agreement of the 1994 Uruguay Round trade agreements, which resolved that importation was to be an exclusive right possessed by patent holders. The 1994 Uruguay Agreements Act, effective in 1996, amended section 154 of the Patent Act to add “importing the invention into the United States,” and amended 35 U.S.C. § 271 to add “import into the United States” in various subsections, most notably § 271(a). ¶3 This iBrief examines the infringement liability of a foreign seller or manufacturer for sales of products abroad that find their way into the United States and are subsequently alleged to infringe a United