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Supreme Court Limits Contributory Liability for Exports

Jim Ruttler, Patent Attorney

Posted Thursday, February 23, 2017 by Jim Ruttler

In Life Tech v. Promega, the Supreme Court has limited contributory liability for supplying parts overseas that are combined to infringe a U.S. patent.

The statute 35 U.S.C. §271(f)(1) creates liability for supplying from the US “all or a substantial portion of the components of a patented invention” to be combined abroad in a manner that would infringe the US patent (if it had been combined in the US). That is, if a substantial portion of the patented invention is shipped overseas only to be combined into an infringing product, there is liability here in the U.S. This prevents companies from escaping infringement liability by making most of the patented product here and then shipping it overseas to finish up the product.

Here the defendant was only shipping one component/ingredient overseas and that ingredient was being used to create the infringing product. The Federal Circuit held that one ingredient could be a substantial part of the patented product. However, the Supreme Court reversed and said it is never enough to supply only one component. There must be a substantial number of components shipped overseas and not just one.

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