Extraterritorial Patent Enforcement and Multinational Patent Litigation: Proposed Guidelines for U.S. Courts

Patent law is traditionally territorial in scope. With recent additions to the Patent Act, Congress, however, has taken action to expand the effective territorial scope of U.S. patents. Moreover, courts, in interpreting this recent legislation, have exhibited a willingness to expand further the reach of U.S. patent law. Concurrent with Congress’s and the judiciary’s struggle to resolve these questions regarding the territoriality of U.S. patents, the United States Court of Appeals for the Federal Circuit recently faced the question of whether U.S. courts should adjudicate claims based on foreign patents. The reluctance of U.S. courts to adjudicate foreign patent claims is inconsistent with recent decisions that seek to stretch U.S. patent law even further and with foreign courts that have adjudicated foreign patent claims. Given that an increasing number of entities hold patents on the same inventions in multiple jurisdictions, multinational patent litigation inevitably will continue to be a crucial issue in international patent law. This Note fills a gap in the academic literature by undertaking an examination of both extraterritorial patent enforcement and multinational patent litigation. This Note brings together divergent strands of research by examining both extraterritorial patent enforcement and multinational patent litigation. Ultimately, this Note suggests that courts should consider enforcing foreign patents in certain situations instead of trying to apply U.S. patents extraterritorially.

Mediating Rules in Criminal Law

This article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law’s deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law’s dominant animating theories – deterrence and retributivism – respond asymmetrically to the workings of those rules. We analyze the features of “mediating rules,” explore their effects across a range of substantive areas, and offer a tentative normative assessment of their role in the criminal law system.