Lifecubes, LLC v. Northern Light Prods., Inc.
523 F.3d 1353 (Fed. Cir. 2008)
Rather than raising issues regarding subject matter jurisdiction, extraterritoriality of alleged infringing acts raises issues related to the elements used to prove infringement, the Federal Circuit held. In Lifecubes, the defendant moved to dismiss for lack of subject matter jurisdiction because its sales to US customers were shipped free on board (f.o.b.), where title passed to the buyer at the Canadian transportation facility. The district court denied the motion after finding ample evidence that products were sold, offered, or imported into the United States. The Federal Circuit affirmed, but on other grounds. Instead, the court concluded that whether the alleged infringement occurred in the United States was an element of a claim for infringement, not a prerequisite for subject matter jurisdiction. On that reasoning, the court, applying the “stream of commerce” test for personal jurisdiction, found that sales had occurred in the United States despite the f.o.b. shipment method. The court further held that the site of sale for identifying acts of infringement should be determined applying the same “stream of commerce test” that is applied to determine personal jurisdiction.