Without Precedent

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Without Precedent


The Federal Circuit issued a novella last week, in the form of Lexmark Int’l, Inc. v. Impression Prods., Inc. The question at issue is straightforward:

“We decided to hear this case en banc to consider whether two decisions of this court concerning the uncodified doctrine of patent exhaustion—one decision from 1992, the other from 2001—remain sound in light of later decisions of the Supreme Court. Today we reaffirm the principles of our earlier decisions.”

Notwithstanding the fact that it was reaffirming decades–old law, it took the Federal Circuit approximately 100 pages to painstakingly reassure readers (or perhaps itself) that it was not simply carving out a special doctrine for patent law that flew in the face of Supreme Court precedent. Not all were convinced:

“We exceed our role as a subordinate court by declining to follow the explicit domestic exhaustion rule announced by the Supreme Court.” (Dyk, J., dissenting).
We will leave it to others to parse the nuances of Lexmark, which concerns the ability of a seller to prevent resale/reuse of a product and whether authorized foreign sales of a product exhausts U.S. patent rights. For present purposes, it is simply worth noting that the Federal Circuit appears to be inching closer again to the concept that patent law is simply a unique beast, with unique rules and requirements. The Supreme Court has taken a skeptical view of that approach in the past. And may well again.

 

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