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Re: Jurisdiction Penumbra

From: Lee Hollaar
Subject: Re: Jurisdiction Penumbra
Date: Tue, 19 Dec 2006 16:43:16 -0700 (MST)

In article <> rjack 
<> writes:
>Lee Hollaar wrote:
>> In article <> rjack 
>> <> writes:
>>>The application of U.S. Patent Law should properly be restricted to U.S. 
>>>territorial jurisdictions (importation) unless by International accord.
>> Since the provision in question, 35 USC 271(f) has been a part of
>> United States patent law since November 8, 1984, it is hard to see
>> what the rant below contributes to the discussion.
>>>Birdbrain Bush announced the U.S.'s unilateral expansion of criminal 
>>>jurdiction to foreign sovereign's territories. This policy will one day 
>>>return to bite innocent U.S. citizens in the ass when other countries 
>>>reciprocate with similar "preemptive" policies.
> > . . . [I]t is hard to see what the rant below contributes to the
> > discussion.
>Perhaps you should wipe the cruel sneer from your hauty visage

Even without a sneer, it is hard to see how your anti-Bush rant
has anything to do with an amendment to the patent statutes that
was made by Congress in 1984.

>> 3. If there were any doubt about the proper interpretation
>> of Section 271(f), the presumption against extraterritoriality
>> would resolve it. As this Court observed in Deepsouth,
>> “[o]ur patent system makes no claim to extraterritorial
>> effect,” and our laws “correspondingly reject the claims
>> of others to such control over our markets.” 406 U.S. at
>> 531; accord Dowagiac Mfg. Co. v. Minnesota Moline Plow
>> Co., 235 U.S. 641, 650 (1915). That venerable principle follows
>> not only from the text of the Patent Act, which generally
>> grants rights only within the United States, see, e.g., 35
>> U.S.C. 154(a)(1), but also from considerations of comity, as
>> courts must “assume that legislators take account of the
>> legitimate sovereign interests of other nations when they
>> write American laws.” F. Hoffmann-La Roche Ltd. v.
>> Empagran S.A., 542 U.S. 155, 164 (2004). Foreign conduct
>> is generally the domain of foreign law, which may embody
>> different policy judgments.
>Need I say more?

Well, you could explain how the Deepsouth decision, which was in
1972, tells us anything about how to interpret an amendment to
the patent statutes in 1984 that was made, in part, to overturn

The section at issue, 35 USC 271(f), is directed precisely at
foreign conduct -- in particular, the assembly of a patented
article from components produced in the United States.  It
makes the supplying of the components from the United States
a form of contributory infringement.  Therefore, it does not
go to foreign conduct, but instead conduct within the United

I would be more impressed with the government's brief if they
looked to what the patented invention -- as denoted by the
claims -- when determining whether something is a component
of that patented invention.  In the case of a Beauregard-type
claim, where the claimed invention is a computer medium storing
a particular program, it is hard to see why the program is not
a component of the claimed invention when it is, in fact, the
key component.

And the reproduction of the Microsoft "gold disk" in that case
would not produce a copy of the program which would be a component
of the claimed invention, but produces the claimed invention

See "The Form of a Software Claim Makes a Big Difference" in
BNA's PTCJ, November 7, 2006, reprinted at:

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