This Article explores one narrow but vital area in which such a complex choice of law is certain to arise: intellectual property. Clearly, intellectual property rights will be among the issues intensely debated with regard to the burgeoning global data network. These issues have been addressed, to the extent they have been addressed at all, primarily in terms of copyright protection. However, the role of patent law cannot be ignored, particularly with regard to protection of the computer software that is so integral to the operation of a data network. United States patent law offers protection to software inventions that may be in use on a computer network; however, assessing patent liability for infringing software on an international data communications network may be problematic. The patent statutes are territorial in nature; the computer network is not. On-line databases and other information services are routinely accessed from abroad through transnational linkages. Such linkages are particularly common between the United States and Western Europe and are likely to grow in the future. Where the users and providers of software-based services inhabit an electronic realm with virtual machines that transcend national boundaries, application of a territorial intellectual property scheme may be difficult and may lead to unintended results.
To examine this problem, Part I of this Article reviews the technology, structure, uses, and future of the global data communications network. Part II reviews the United States' patent system, emphasizing those provisions that may be implicated in the operation of computer software in a global data communications environment. Several of the current patent provisions could be applied in order to find liability for extraterritorial use of infringing software. However, Part III discusses the potential drawbacks of patent enforcement and tenders the proposal that until Congress takes the opportunity to weigh the competing interests in this area, courts enforcing software patents should be prepared to carve out certain exceptions to liability when international computer networking is involved.
Dan L. Burk. Visiting Assistant Professor of Law, George Mason University. B.S., Brigham Young University, 1985; M.S., Northwestern University, 1987; J.D., Arizona State University, 1990; J.S.M., Stanford University, 1993.
68 Tul. L. Rev. 1 (1993)