The Tariff and the Patent: A New Intersection

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;^sup 1^The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;^sup 2^Upon joining the judiciary as a Circuit Judge on the U.S. Court of Appeals for the Federal Circuit, I was eager to become immersed in the varied legal subject matter of the Federal Circuit. My anticipation was not disappointed, but it was surpassed by the pleasant discovery of the manner that international trade law and patent law have intersected in my professional life. To me, the patent and the tariff have married.Prior to joining the bench, I practiced international trade and customs law in Washington, DC for over twenty-five years. This meant providing real-time assistance to companies in meeting their commercial objectives in the context of an international business environment. This rich experience has given me a unique and multifaceted perspective to the issues inherent in the matters I now handle as a Circuit Judge. This perspective has proven invaluable in dealing not only with the complex legal issues in our cases, but also in understanding the myriad of vexing technical and commercial issues that comprise the rich subject matter jurisdiction of the Federal Circuit.Often, I hear the Federal Circuit characterized as "the nation's patent court."3 While there is no question that Congress created the Federal Circuit to bring about uniformity in the patent laws, Congress did not stop there. Congress created a unique nationwide jurisdiction that is at once diverse, challenging, and highly interesting-spanning from international trade disputes to government contracts; personnel actions to veterans appeals; and even from vaccine injuries to Native American claims. This volume of the American University Law Review's Federal Circuit review certainly illustrates that diversity.Yet, I was surprised to discover the extent to which patent law implicates international issues. Consider, for example, patent law jurisdiction. The Supreme Court has observed that "[o]ur patent system makes no claim to extraterritorial effect; 'these acts of Congress do not, and were not intended to, operate beyond the limits of the United States.'"4 Starting from this premise, one would expect the reach of our patent jurisdiction to end at the border. But commerce has changed, technologies have evolved, and companies have become more globalized. In the area of patents, large multinational corporations are the norm. Acts of infringement are alleged to span not only between states, but also across countries all over the globe. The so-called global "Smartphone Wars" are a good illustration of this.5 These types of issues challenge the law and certainly challenge the Federal Circuit to resolve them with international implications in mind.Not surprisingly, patent attorneys are increasingly confronted by issues that trade lawyers have dealt with for decades. This could be expected given that the regimes of intellectual property and international trade, on some levels, attempt to address similar concerns. Through application of antidumping and countervailing duties, U.S. trade law protects domestic industries from unfair trade practices that artificially suppress prices and materially injure, or threaten to injure, the health of the domestic industries that produce the same types of goods. The intellectual property system, by providing a remedy for patent, trademark, and copyright infringement, similarly protects property rights arising from ingenuity and inventorship from being undercut by advantage- seeking copyists. The International Trade Commission's section 337 jurisdiction further closes the loop between trade and patent law by enabling the patent holder to stop the importation of infringing articles. …