But the underlying issue in dispute wasn't whether Life Tech's patent was invalid or practiced here in the United States. Here, Promega was actually a licensee of Life Techs' patent, but incurred the patent holder's wrath when Promega's manufacturer began to sell testing kits outside of the license agreement. But one of the factors courts look at in assessing the validity of liquidated damages is whether damages due to the innocent party are otherwise uncertain. What Life Techs means for patents and the global supply chain isn't that the Promegas of the world can export small pieces of otherwise infringing material, Scot-free. Rather, it means that similar patent agreements now are likely to include liquidated damages provisions for overseas conduct, if they don't already.

Source: Forbes February 24, 2017 14:03 UTC