The "Planes, Trains, and Automobiles" Defense to Patent Infringement for Today's Global Economy: Section 272 of the Patent Act
Bibliographic record
Abstract
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.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.006 | 0.016 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.000 | 0.001 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.007 | 0.007 |
| Scholarly communication | 0.009 | 0.004 |
| Open science | 0.002 | 0.002 |
| Research integrity | 0.018 | 0.011 |
| Insufficient payload (model declined to judge) | 0.004 | 0.002 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".