This Article argues that the temporary presence exception was not designed to allow conveyance owners the ability to select the most optimal patent system under which to be subject. It also examines the ramifications of the temporary presence exception on international commerce and concludes that increased use of the exception may result in reduced values for patents relating to international conveyances, reduced incentives to invest in and develop technologies in international conveyances, and a decrease in the quality of various domestic patent systems worldwide. Finally, this Article proposes a solution to these problems. The temporary presence exception has received some attention in academic literature, which has focused on the interpretation of "temporarily." This Article will examine the exception from a different angle, focusing on the impact that the increased use of the exception may have for users of international conveyances and innovators in the field of international transport. Part I begins with an overview of patent law with a particular focus on territoriality and nationality, before detailing the history and purpose of the temporary presence exception. The treatment and interpretation of the exception by various domestic courts is also examined. Part II provides an overview of the international system of conveyance nationality and registration as it applies to conveyances involved in international trade. Part III argues that the confluence of international registration regimes with the temporary presence exception can effectively insulate conveyances from the reach of patent laws globally and demonstrates how such infringement avoidance is possible. Part IV proposes a solution to the over-breadth of the exception that retains the primary objectives of the exception. This solution involves the creation of an international registry of patents that would overcome a temporary presence exception defense of patent infringement. The proposal also outlines a method for domestic courts to determine foreign vehicle nationality that would limit the ability of vehicle owners to game the global patent system via the exception.
J. J. Anderson,
Hiding Behind Nationality: The Temporary Presence Exception and Patent Infringement Avoidance,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol15/iss1/1