According to 35 USC § 271 (a):
Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
A petition for a writ of certiorari, dealing in part with the semantic interpretation of this sentence, is now pending before the Supreme Court. The critical question is how to interpret the adverbial adjunct "within the United States" as applied to the phrase "offers to sell". Does it constrain the location of the offering, or the location of the selling, or perhaps both?
The petitioner argues that the statute should be interpreted as constraining the location of the offering:
Basic English grammar further confirms that the listed acts—makes, uses, offers, or sells—must occur “within the United States.” The use of “within the United States” to modify a list of verbs means that it must modify each member of the list the same way. See Edwin D. Garlepp, An Analysis of the Patentee’s New Exclusive Right to “Offer to Sell,” 81 J. Pat. & Trademark Off. Soc’y 315, 325–26 (1999). This rule works perfectly when requiring the acts of making, using, offering, or selling actually to occur “within the United States.”
On this view, if an offer to sell a patent invention is made outside the United States, contemplating a sale to carried out within the United States, no infringement takes place.
The court of appeals disagreed. A brief in opposition to the petition is here.
My impression is that in phrases of the form [Verb Infinitive LocativePP], the locative generally modifies the infinitive rather than the main verb, as in these examples from the NYT:
The opposition had refused to sit in Parliament since the election in June 2001.
American officials have offered to meet in Moscow or elsewhere in Europe.
Some years ago, Tom Boerman, 44, a special-education researcher in Eugene, Ore., agreed to travel in Mexico with four friends.
It's clear in these cases that the refusing, the offering, and the agreeing (probably) did not take place in the locations specified by the locative PPs, which modify the sitting, the meeting, or the traveling.
Perhaps some of our legally informed readers can explain whether a more systematic exploration of common usage would in principle be relevant to this case.
A couple of earlier LL posts on adverbial scope in statutory interpretation:
[Tip of the hat to David Seidman]