The "Planes, Trains, and Automobiles" Defense to Patent Infringement for Today's Global Economy: Section 272 of the Patent Act


In 2004, for the first time ever, the U.S. Court of Appeals for the Federal Circuit applied the little-known temporary-presence defense of 35 U.S.C. § 272 in National Steel Car v. Canadian Pacific Railway. Section 272 provides a defense to patent infringement where a foreign vessel, aircraft, or vehicle enters the United States temporarily to engage in international commerce. The purpose behind § 272 is to prevent domestic patent enforcement from inhibiting international trade. Although this defense may not be well known yet, the Federal Circuit’s broad interpretation of § 272 will allow the temporary-presence defense to become more important as the world continues to become smaller and commerce continues to become more global. Indeed, the vehicles that facilitate transnational commerce will increasingly need to rely on § 272 in today’s global economy. This Article first traces the history of the temporary-presence defense, from its origins in England and the U.S. Supreme Court in the 1850s through the enactment of § 272 in the United States in 1952. This Article also discusses U.S. and foreign cases applying the temporary-presence defense before National Steel Car. Next, this Article analyzes the decisions of the district court and Federal Circuit in National Steel Car and concludes that the Federal Circuit was correct in broadly interpreting § 272. Finally, this Article considers what may be the limits of the scope of the temporary-presence defense of § 272.


Intellectual Property Law

Date of this Version

September 2005