Supreme Court Upholds Award of Foreign Lost Profits for U.S. Patent Infringement: Courts May Award Foreign Lost Profits Where Infringement Is Based on the Export of Components of Patented Invention Under § 271(f)(2) of the Patent Act.

Sullivan & Cromwell LLP - June 25, 2018

In a 7-2 decision reversing the Federal Circuit, the Supreme Court in WesternGeco LLC v. ION Geophysical Corp. held that a patent owner is entitled to damages based on lost foreign profits that result from infringement under 35 U.S.C. § 271(f)(2). The Court held that because the combined statutory focus of § 271(f)(2) and the general patent damages statute, § 284, is on domestic activity, concerns about the presumption against extraterritoriality do not require limiting damages under § 271(f)(2).