Patrick M. Birney wrote the article «Revisiting
Presumption Against Extraterritoriality in Avoidance Actions» for the most recent issue of the American Bankruptcy Institute Journal (ABI Journal).
Using the decision in SIPC v. Bernard L. Madoff Investment Securities LLC as an example, he concludes by examining how the presumption
against extraterritoriality applies in the context of avoidance proceedings under the Bankruptcy Code.
Many of the Justices» questions for the Respondent were based around the idea that applying the presumption
against extraterritoriality here would prevent the patentee from being fully compensated for the patent infringement.
In the article, Mr. Birney considers the extraterritorial application of federal statutory law and explores the presumption
against extraterritoriality.
Judge Susan L. Carney, writing the majority opinion in which Judge Victor A. Bolden concurred, summarized the conclusion of the court that interpreting warrant to require a service provider to produce data from beyond the borders of the United States would require the court to disregard the presumption
against extraterritoriality, at p. 6:
Respondent argued that the presumption
against extraterritoriality should bar the Petitioner from being awarded foreign lost - profit damages, because the harm (downstream loss of foreign profits once the patented device is used abroad) is too far removed from the domestic act of infringement for these damages to appropriately be awarded.