Can Foreign Sales Infringe U.S. Patents?

It is a deceptively simple question with a not so simple answer. A purely foreign transaction is certainly beyond the reach of U.S. patent law, but what if part of the transaction occurs within the United States? For example, if a company executes a contract in the U.S. to manufacture and deliver a product overseas, and that product is covered by a U.S. patent, has the patent been infringed? After decades of confusion in the courts, the Federal Circuit provided some much needed guidance in its 2014 ruling in Halo Electronics, Inc. v. Pulse Electronics, Inc., 769 F.3d 1371 (Fed. Cir. 2014), but stopped short of announcing any bright-line tests. This article examines the efforts that the Federal Circuit and district courts have made to resolve this fundamental question of infringement liability in our increasingly global economy.