The United States Supreme Court on March 21, 2017 held oral arguments on the first sale patent exhaustion case Impression Products, Inc. v. Lexmark International, Inc.
, which we previously discussed at First Sale and the Patent Exhaustion Doctrine in the Resale and Use of Printer Ink Cartridges
.
The issue presented
is formulated by the Supreme Court:
" 15-1189 IMPRESSION PRODUCTS, INC. V. LEXMARK INTERNATIONAL, INC.
DECISION BELOW: 816 F.3d 721
LOWER COURT CASE NUMBER: 2014-1617, 2014-1619
QUESTION PRESENTED:
The "patent exhaustion doctrine"-also known as the "first sale doctrine"-holds that "the initial authorized sale of a patented item terminates all patent rights to that item." Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 625 (2008). This case presents two questions of great practical significance regarding the scope of this doctrine on which the en banc Federal Circuit divided below:
1. Whether a "conditional sale" that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law's infringement remedy.
2. Whether, in light of this Court's holding in Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1363 (2013), that the common law doctrine barring restraints on alienation that is the basis of exhaustion doctrine "makes no geographical distinctions," a sale of a patented article-authorized by the U.S. patentee-that takes place outside of the United States exhausts the U.S. patent rights in that article.
CERT. GRANTED 12/2/2016
"
The main question in this case is reflected by the precedent-based reluctance of the U.S. Supreme Court to support the alienation of chattels in commerce, here the first sale patent exhaustion doctrine, a legal issue that goes back hundreds of years to common law and Lord Coke (who has retained his name over the centuries in spite of modern oft overreaching intellectual property protection of generic and name terms):
We think that Justice Breyer's comments during oral argument in the above-cited case represent what the Supreme Court will likely decide on the main issue, based on the logic of Breyer's arguments [here excerpted by LawPundit]:
" JUSTICE BREYER: What about Justice Kennedy's question? I mean, Lord Coke had that very question in mind, I think, that -- that one of the problems with restraints in alienation of chattel is that the buyer may not know, and -- and moreover, it stops competition among buyers. Those are the basic two things that have led that as a kind of underlying principle.
...
Then why don't you require the person who sells it to just resell it with the requirement that they promise not to, you know, whatever it is?
...
[O]ne of the reasons that it's hard to get away with that is the antitrust laws in the contract area. And another reason is because Lord Coke said 300 years ago, you know, it's -- you get into a lot of trouble when you start trying to restrict this buyer who's got the widget and he would like to use it as he wishes. Now, that's been the kind of basic legal principle for an awfully long time.
...
There ... are all kinds of exceptions.
But to go back to your basic point underlying this, of course, any monopolist, including a patent monopolist, would love to be able to go to each buyer separately and extract from each buyer and user the maximum amount he would pay for that particular item.
Dentists would pay more for gold perhaps than someone who wants to use gold for some other thing. Okay? They'd like that.
But by and large, that's forbidden under many laws, even though it does mean slightly restricted output, and it also means a lower profit for the monopolist.
All right. Now, it's against that background that I think the law and economics professors, who are telling what is correct, that -- and the argument that you're making has to be evaluated. That's what I think on the first part.
All this precedent is very hard for you to get around. And I'm not talking about just Lord Coke; I'm talking about the Supreme Court precedent.
"
Tuesday, April 04, 2017
Saturday, April 01, 2017
EU Laws and UK Law As the Result of Brexit : The Example of the General Data Protection Regulation
The government of the United Kingdom has now invoked
Article 50 of the Treaty on European Union and has thus formally triggered the UK intention to leave the EU, a separation widely called "Brexit" for short.
In two years, Brexit will finalize the divorce of the UK from the EU, but that divorce does not automatically repeal laws in force in the United Kingdom.
Brexit has many complex legal aspects, many of which will beset Europe and beyond for many years, among which is a widespread misunderstanding of how EU Law applies to UK persons and businesses in the interim ... and beyond.
Brexit itself does not nullify laws in effect in the UK.
As headlined at Out-Law.com:
Survey reveals UK business' misunderstanding on GDPR and Brexit .
The GDPR is the General Data Protection Regulation, which goes into effect in the EU before Brexit occurs.
The UK government has said that the GDPR will be adopted in the UK regardless of Brexit.
What happens thereafter is then up to the lawmakers in the United Kingdom.
In two years, Brexit will finalize the divorce of the UK from the EU, but that divorce does not automatically repeal laws in force in the United Kingdom.
Brexit has many complex legal aspects, many of which will beset Europe and beyond for many years, among which is a widespread misunderstanding of how EU Law applies to UK persons and businesses in the interim ... and beyond.
Brexit itself does not nullify laws in effect in the UK.
As headlined at Out-Law.com:
Survey reveals UK business' misunderstanding on GDPR and Brexit .
The GDPR is the General Data Protection Regulation, which goes into effect in the EU before Brexit occurs.
The UK government has said that the GDPR will be adopted in the UK regardless of Brexit.
What happens thereafter is then up to the lawmakers in the United Kingdom.
Saturday, February 04, 2017
Metropolitan Museum in New York City in Financial Difficulty ... A Sign of the Times?
Met Museum in Decline?
is a question posed by Robin Pogrebin at the New York Times regarding the financially troubled Metropolitan Museum in NYC.
We are certain that such a great institution as the Met will ultimately recover and prosper down the road -- after returning to its core responsibilities -- but its financial difficulties in our opinion may mirror severe similar problems found throughout a "liberal" U.S. society too often marked by what we view as skewed "mainstream" hype, hubris and overreaching (i.e. allegedly "politically correct" activism that extends far beyond "legitimate" duties and roles).
The prevailing "populist" revolt in the USA, the United Kingdom's ongoing path to Brexit, plus strong political populist unrest in Europe in general, seem to reflect an inevitable pendulum swing in mass popular opinion -- a movement which appears to be based on an instinctive, underlying need of the affected nations' inhabitants to restore a sensible balance of powers and interests.
We are not against "liberalism" as such, but it represents at best, only half the world. When the other half is forgotten, trouble ensues.
For example, reporters at the New York Times in their recent political reporting have totally forgotten that something like 60 million voters in the USA are not against the new U.S. President but are likely rooting privately: "Go Trump!".
Where in the pages of the world's leading newspaper is that reported? Either you report the REAL news, i.e. what is actually happening "out there" and not necessarily what media people at the NY Times WANT to happen, or, you become like the Met, a once major player left behind by the times....
The Met may thus not be any kind of a special exception. We ourselves are reading the New York Times less and less these days, because their news reporting has become more and more partisan and vastly overreaching in terms of their actual "news" responsibilities.
We are certain that such a great institution as the Met will ultimately recover and prosper down the road -- after returning to its core responsibilities -- but its financial difficulties in our opinion may mirror severe similar problems found throughout a "liberal" U.S. society too often marked by what we view as skewed "mainstream" hype, hubris and overreaching (i.e. allegedly "politically correct" activism that extends far beyond "legitimate" duties and roles).
The prevailing "populist" revolt in the USA, the United Kingdom's ongoing path to Brexit, plus strong political populist unrest in Europe in general, seem to reflect an inevitable pendulum swing in mass popular opinion -- a movement which appears to be based on an instinctive, underlying need of the affected nations' inhabitants to restore a sensible balance of powers and interests.
We are not against "liberalism" as such, but it represents at best, only half the world. When the other half is forgotten, trouble ensues.
For example, reporters at the New York Times in their recent political reporting have totally forgotten that something like 60 million voters in the USA are not against the new U.S. President but are likely rooting privately: "Go Trump!".
Where in the pages of the world's leading newspaper is that reported? Either you report the REAL news, i.e. what is actually happening "out there" and not necessarily what media people at the NY Times WANT to happen, or, you become like the Met, a once major player left behind by the times....
The Met may thus not be any kind of a special exception. We ourselves are reading the New York Times less and less these days, because their news reporting has become more and more partisan and vastly overreaching in terms of their actual "news" responsibilities.
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