Article

Three Views of Stream-of-Commerce Jurisdiction for Infringing IP

Law360

20 May 2020
Reprinted with permission.

Bryan Wilson and Yuqing Cui authored an article for Law360 covering the use of the stream-of-commerce theory in patent cases. Without a consensus on the standard for using this theory in the U.S. Supreme Court, the authors discuss three recent district court opinions that highlight the continuous development of the standard among the lower courts.

“To plead adequate facts to obtain specific personal jurisdiction over a non-U.S. defendant selling accused products through an e-commerce website, a plaintiff may consider (1) obtaining statements from the defendant about its targeted market, (2) defendant’s IP strategy in the U.S., and (3) its customer’s geographic distribution…[but] it is important to keep in mind that not all lower courts have taken such lenient approaches,” the authors wrote.

“Furthermore,” they added, “the stream-of-commerce theory requires actual sales into the forum state. This might be difficult to obtain without discovery, creating a catch-22 problem: on one hand, without discovery, plaintiff cannot obtain evidence of actual sales; on the other hand, plaintiff cannot obtain judicial discovery without first pleading sufficient facts, such as actual sales, in its complaint. This problem is particularly thorny given the court’s reluctance to credit plaintiff-orchestrated sales.”

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