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December 05, 2016


Hey Andrew,

Given that the Federal Circuit ruled in favor of the patent owner, it's almost a given that SCOTUS will reverse. But given what transpired during the oral argument, I wouldn't hold my breath on SCOTUS providing any meaningful definition/guidelines on what "all or a substantial portion" means in 271(f)(2). Given that SCOTUS cowardly "punted" on what "article of manufacture" means in the Apple v. Samsung, they could do the same in Life Tech v. Promega.

One has to wonder what exactly frightens the Supreme Court as to having brightline rules in place for patent law.

Hey Andrew,

My apologies, I should have said "271(f)(1)," not "271(f)(2)." That SCOTUS is more than likely to come out with a wishy-washy view of what "all or a substantial portion" won't surprise. SCOTUS proved in Microsoft v. AT&T that they don't understand the language in either subsection of 271(f) because they're unwilling, unlike the Federal Circuit in Waymark that interpreted the language of 271(f) correctly, to loosen their Olympic grip on the dead hand of Deepsouth Packing.

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