In addition to considering Prof. Holbrook’s work, folks digging deeper into the WesternGeco issues will also want to consider Prof. Kumar’s updated article titled Patent Damages Without Borders. She explains:
In WesternGeco, the Federal Circuit held that patent holders who show infringement under § 271(f) of the Patent Act cannot recover foreign lost profits. . . . This interpretation severely limits the ability of district courts to make patent infringement victims whole. . . . By creating this bright-line rule, the Federal Circuit has unduly restricted the ability of patent holders to recover damages, including in cases where there is no other applicable law. This Article proposes that the Federal Circuit adopt a flexible test that balances prescriptive comity concerns with the United State’s interest in making victims of domestic patent infringement whole.