Day March 17, 2022

Extraterritoriality: Intellectual Property

[Timothy R. Holbrook] Abstract: Intellectual property rights, particularly patents, copyrights, and trademarks, have been the subject of international treaties for quite some time. Those treaties all treat intellectual property rights as national in nature, with attendant territorial limits. ... For extraterritoriality, that means that the use of one nation’s intellectual property to leverage control over the acts and markets of another have significant implications for sovereignty. These concerns could be vindicated through a robust use of conflicts of law in extraterritorial jurisprudence. The role of conflicts has been, at best, unclear in U.S. law. This chapter suggests, however, that when the conflict is one over the validity within the foreign country, conflict concerns should be at their apex. In other words, why should one jurisdiction allow an IP right holder to leverage a right into a country that would find that right invalid? This dynamic goes beyond merely holding someone liable for acts in a foreign country; it directly undermines the political choices of that sovereign in a far more significant way.