Making Patents Great Again: U.S. Supreme Court Allows Foreign Lost Profits for Infringement Under 271(f)(2)

The U.S. Supreme Court (Justice Thomas) issued the opinion in WesternGenco v. Ion concerning the availability of foreign profits as part of damages under section 284 of the Patent Act.  The U.S. Supreme Court basically holds that section 284 includes lost foreign profits—at least as a remedy to an infringement under 271(f)(2).  Essentially, WesternGenco owns patents directed “to a system that it developed for surveying the ocean floor” and does not license the patents.  ION “manufactured the components for [a] competing system and then shipped them to companies abroad.”  Western Genco sued for patent infringement under 271(f)(1) and (2).  The jury “awarded WesternGenco damages of $12.5 million in royalties and $93.4 million in lost profits.”  ION asserted that the lost profits are unavailable to WesternGenco because “271(f) does not apply extraterritorially.”  The Federal Circuit reversed…

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