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(These latest Intellectual Property (IP) news and events presented here,are prepared and compiled by us,the World Patent & Trademark Law Office (WPTO),for your reference and information)
On the heels of its March 19, 2013, decision in , where the Supreme Court held that international exhaustion , , an ex-U.S. first-sale rule applies to copyrights, the Court has surprisingly Ninestar Technology Co. Ltd.’s (“Ninestar”) for certiorari to consider whether international exhaustion applies to patents.
In our previous report on the , we discussed the key points of the Court’s holding. It would seem reasonable to assume that the application of the ex-US first-sale rule should apply similarly to both copyrights and patents. However, a key distinction is that the first-sale rule in copyright law has a statutory basis under the Copyright Act (17 U.S.C. §109), whereas the first-sale rule in patent law is grounded in common law. Interestingly, Justice Breyer, delivering the majority opinion in , wrote, “[t]he common law doctrine makes no geographical distinctions . . . .”
This appears to conflict with recent Federal Circuit holdings involving the first-sale rule in patent law, such as , 264 F.3d 1094 (Fed. Cir. 2001) and , 394 F.3d 1368 (Fed. Cir. 2005).
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(IP Law Alert)