Patents are often said to be defined by their claims and, as such, are analogous in the parlance of real property to the “metes and bounds” of a deed to real property. What, therefore, are the metes and bounds in terms of offshore waters? This question arises frequently in the context of offshore drilling and the related exploration of the sea floor.
Generally, countries with shorelines (coastal states) can claim all sovereign rights, including the establishment of patent rights, in territorial waters extending 12 nautical miles (22 kilometres or 14 miles) from a baseline measured at low tide. This limit was specified in the United Nations Convention of Law of the Sea of 1982 (the Convention). Within 12 nautical miles of the baseline, the coastal state is free to set laws, regulate use and use any resource.
Beyond the initial 12 nautical mile limit, there is a zone, comprising a further 12 nautical miles from the limit of the territorial waters, known as the contiguous zone. In the contiguous zone, a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution, if the infringement started within the state’s territory or territorial waters, or if this infringement is about to occur within the state’s territory or territorial waters.
The next zone is the Exclusive Economic Zone (EEZ), which extends 200 nautical miles (370 kilometres or 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. Nations also have certain rights to the continental shelf, which is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles from the coastal state’s baseline, whichever is greater. To date, 162 countries and the European Community have joined the Convention. The United States has agreed to the bulk of the Convention and even signed it, but has not yet ratified it. Despite this, the United States has adopted, by way of a Presidential Proclamation issued by Ronald Regan in 1983, the definitions of the various coastal zones as specified in the Convention.
Patent Rights in UK Offshore Zones
That patent infringement can occur within the territorial waters of a coastal state is perhaps expected, but the other zones present more uncertainty. For example, the question of whether a patent can be infringed in the EEZ is less clear, and countries have dealt with this question in disparate ways. Some have interpreted the language of the Convention as allowing the extension of patent rights into the EEZ, while others have declined to do so.
The United Kingdom has faced particular issues in def ining the territorial scope of patent infringement in the context of offshore waters, owing to its island status, the history of the British Empire and the existence of oil fields in the North Sea. Ordinarily, a UK statute (in this case, the Patents Act 1977, which applies to both UK and the UK designations of European Patents) would take effect only in the United Kingdom itself. However, there are a number of provisions that provide for the extra-territorial applicability of the act.
Section 132(2–3) provides that the Patents Act applies to the Isle of Man and to the territorial waters of the United Kingdom respectively. Section 132(4) provides for two further extra-territorial extensions. The first is to any areas designated under Section 1(7) of the Continental Shelf Act 1964. Numerous designations have been made since 1964, primarily to encompass various oil fields and fishing grounds in close proximity to UK waters. By these designations, all provisions relating to patents apply to the extended areas.
The second extension relates to areas specif ied under Section 10(8) of the Petroleum Act 1998. In those areas, the Patents Act applies only in connection with the exploration of the sea bed or of subsoil, or exploitation of their natural resources, although this is extended to installations concerned with exploration, exploitation, transport by pipes and provision of accommodation.
In Rockwater Ltd v Cof lexip SA  EWHC 812 (Pat), the extensions under Section132(4) to cover certain offshore oil fields was not disputed, and the patent was held valid and infringed on appeal.
Patent Rights in US Offshore Zones
US federal courts have declined to recognise US patent rights within the EEZ, and have held specifically that neither the high seas nor the EEZ of the United States can be considered US territories when determining the extent of coverage of US patent law. WesternGeco v Ion Geophysical Corp. et al., No. 4:09-cv-1827, S.D. Tex. 2 March 2011, was the outcome of suits brought by a physical services company, WesternGeco, against a seismic solutions company and a data collection company (collectively, the Defendants), alleging the Defendants had infringed f ive of WesternGeco’s US patents.
A seismic vessel had towed an array of airgun and hydrophone streamers for data acquisition and utilised an allegedly patentinfringing system and control software for streamer control and positioning. WesternGeco alleged the Defendants had conducted a three-dimensional seismic survey in Chukchi Sea, off the coast of Alaska. The explored area was located in the Outer Continental Shelf (OCS), about 100 miles northwest of Wainwright, Alaska, and approximately 150 miles west of Barrow, Alaska. The Chukchi survey location was approximately 100 miles off the coast of Alaska, an area considered to be within the OCS and the EEZ of the United States. The Defendants presented arguments that none of WesternGeco’s allegations were actionable under US patent law because they occurred outside the United States.
The court held that the Chukchi Sea, when considered as high seas and/or the EEZ of the United States, cannot be the territory of the United States. This decision was reached because the language in the Presidential Proclamation recognises the EEZ to be “beyond the territory and the territorial sea of the United States”, and recognises the United States as having limited sovereign rights and jurisdiction over the EEZ (March 2011 Order at 37, quoting Presidential Proclamation No. 5030, Mar. 10, 1983, 48 Fed. Reg. 10605 (1983)). In a later phase of the case, the court examined the legislative history of the controlling 1952 Patent Act and the circumstances of the Presidential Proclamation. The court concluded the EEZ was not a “territory or possession” according to the Patent Act and the Presidential Proclamation reaffirmed such a conclusion. The court also noted it was reluctant, in the face of such evidence, to extend patent protection into the EEZ, because in doing so it would effectively step into the shoes of Congress, which has the sole power to enact federal law in the United States.
Patent Rights in South African Offshore Zones
South Africa, taking a different course, has held that its patents are effective within its EEZ. In Schlumberger Logelco Inc. v Coflexip S.A. (700/98  ZASCA 25), the court heard an appeal in which Schlumberger Logelco alleged infringement arising from the pumping of crude oil from the sea floor in the EEZ to a platform, again, within the EEZ. The court noted the controlling Maritime Zones Act, the object of which is to bring South African law in line with the Convention, provided that “any law in force in [South Africa] applied to ‘installations,’ such as pipelines, within the EEZ.”