ABSTRACT
Historically, patent enforcement relied on the strict principle of territoriality, a doctrine that is increasingly destabilized by distributed networks, cloud computing, and the placement of servers overseas. This research provides a comprehensive comparative analysis of how the United States and Japan address the jurisprudential challenges of cross-border patent infringement and divided multi-actor infringement within the context of borderless digital architectures. The analysis reveals that the United States has developed a highly categorized, bifurcated framework that applies a ‘control and benefit’ standard to system claims to capture the domestic use of foreign network components, while maintaining a strict geographical boundary for method claims that require every step to be performed within the United States. In stark contrast, Japan has recently executed a historic paradigm shift to abandon rigid geographic formalism, and established a substantive four-factor balancing test to determine whether a cross-border network invention is functionally and economically worked within Japan, effectively eradicating the ‘server loophole’. This resulting jurisprudential asymmetry introduces profound strategic implications for multinational patent prosecution, global forum shopping, and the management of international parallel litigation. Ultimately, these divergent national methodologies underscore an urgent need for legislative action and international harmonization to ensure intellectual property rights remain enforceable across a globalized digital economy.
Pham, Frank, Comparative Law of Cross-Border Patent Infringement: A Jurisprudential Analysis of the United States and Japan (March 24, 2026).
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