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Noah Feldman

The Supreme Court Just Made Life Worse for Patent Holders

The justices give manufacturers a road map for avoiding infringement lawsuits.
Make it abroad.

Make it abroad.

Photographer: Evans/Three Lions/Getty Images

The Supreme Court made it easier on Wednesday for U.S. manufacturers to infringe patents held by competitors by manufacturing all but one of the infringing components abroad. The practical consequences could be significant, as could the court’s apparent view that the key U.S. appeals court for patent cases has been too sympathetic to patent holders.

The case, Life Technologies Corp. v. Promega, arose from a conflict over a toolkit for genetic testing used by law-enforcement. Promega Corp., a Wisconsin-based biotech company, held the exclusive license to a patent for the toolkit, and sublicensed the manufacture to Thermo Fisher Scientific Inc.'s Life Technologies unit. In turn, Life Technologies made four of the five components of the kits in the U.K., and a single component, called the Taq polymerase, in the U.S. It shipped the Taq polymerase to the U.K. to be combined with the other components and then sold.