In a decision that is likely to be heard en banc, a divided panel of the Federal Circuit vacated a district court's order permitting plaintiff to amend his complaint to allege infringement of foreign patents. The panel majority (per Gajarsa, joined by Prost), held that the trial court erred in exercising discetionary power to hear such claims pursuant to the supplementary jurisdiction granted in 28 USC 1367. Judge Newman dissented. This is a very significant opinion. The case is Voda v. Cordis Corp., 2007 WL 269431 (Fed. Cir. Feb. 1, 2007).
This is not a case where the issue was whether to look to foreign law as a source of U.S. law; rather, the question was whether, given jurisdiction over the parties in an action for infringement of a U.S. patent, could plaintiff amend his complaint to include separate claims for infringement of foreign patents, for which the district court would apply foreign law for the foreign claims? The majority seems to have held no, never. The dissent seems to say yes in this case, but each case will have to be decided on its own facts to see whether there a common nucleus of operative facts under United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
In copyright cases, courts have followed the dissent's approach of analyzing the issue on a case by case basis. No case I am aware of has taken the across-the-board approach of the panel majority, nor did the majority base its decision on a failure to find a common nucleus of operative fact. I appreciate the majority's concern about offending the possible interests of other nations and there is also the concern about whether asserting jurisdiction over foreign claims makes sense from an efficiency standpoint. For example, what if a U.S. declares a foreign patent invalid under foreign law? If one replies that a foreign court does not have to give such a ruling any weight, what is the value of having parties litigate the matter initially in the United States? On the other hand, as the dissent points out, U.S. courts routinely apply foreign law in a broad array of commercial contexts, although it is unclear if such decisions are the result of a forum selection clause or other consent of the parties.