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The article analyzes the management of digital resale in the era of international exhaustion. Topics discussed are copyright holders' right of reproduction and distribution with respect to the sale of rule for digital goods under the U.S. Copyright Act of 1970 and Directive 2001/29/EC of the European Parliament, interaction between first sale rule and international trade, implications of digital exhaustion for copyright holders and consumers, and failure of digital rights management.

The article examines how patent exhaustion applies to self-replicating technologies and how the U.S. Supreme Court case Bowman v. Monsanto explicitly left open whether and how exhaustion applies to self-replicating technologies more broadly. It mentions decision of the U.S. Supreme Court in the case Impression Products v. Lexmark International to create an exhaustion framework for self-replicating technology.

An introduction is presented in which editor discusses various articles within the issue on topics including how patent exhaustion applies to self-replicating technologies; anticircumvention provisions within the Digital Millennium Copyright Act (DMCA) and Music Modernization Act (MMA).

Under the doctrine of patent exhaustion, an authorized sale of a patented item exhausts the patentee's rights with respect to that item, leaving the purchaser and subsequent owners free to use or resell it without fear of an infringement lawsuit. In 2017, the U.S. Supreme Court issued its landmark decision in Impression Products v. Lexmark International, which strengthened the exhaustion doctrine in various significant ways. The Court held that an authorized sale of a patented item exhausts all patent rights with respect to that item, regardless of any restrictions on use or resale the patentee purports to impose. The Court further held that exhaustion is triggered not only by local sales but also by authorized sales outside the United States. The decision is likely to have considerable implications across various industries. This Article examines the immensely valuable but underexplored role that the exhaustion doctrine could play in the context of cumulative innovation. Research and development efforts often involve the need to use earlier patented inventions. Yet, licensing transactions between follow-on inventors and patent owners are characterized by particularly high transaction costs and other factors that may impede the ability of the parties to reach an agreement. As a result, the patent system ends up at times stifling technological progress rather than promoting it. This Article demonstrates that this concern may be mitigated by the Impression Products decision. The patent exhaustion doctrine, as construed by the Supreme Court, could constitute an effective policy tool for facilitating cumulative innovation in a variety of settings. For instance, under the /javMmprcssion Products exhaustion doctrine, a patent owner would not be able to invoke patent law to prevent a purchaser of a patented product from reverse engineering said product while developing an improved version or a compatible product, using the patented product as a research tool in the investigation of any subject matter, or combining the product with other components or integrating it into a larger system. Most importantly, the post- Impression Products exhaustion doctrine would shield such activities of a follow-on inventor notwithstanding any contractual post-sale restrictions and regardless of the location of the sale. Overall, applying the exhaustion doctrine to cumulative innovation settings in the manner proposed by this Article could have vast implications for our innovation ecosystem. [ABSTRACT FROM AUTHOR]

The exhaustion doctrine generally provides that when a patent holder sells or authorizes another party to sell a patented item, the patent rights in that item are exhausted, and the patent holder cannot pursue that product down the stream of commerce to demand royalties from each party that subsequently acquires the item. Patent holders have often sought to evade patent exhaustion by drafting licensing agreements attending or authorizing the sale of their patented products that place restrictions on the use of the patented item or otherwise provide that no patent exhaustion has occurred. In Impression Products v. Lexmark, the Supreme Court held that such post-sale restrictions are ineffective to prevent patent exhaustion. This overruled Federal Circuit precedent holding that contractual restrictions to evade exhaustion were effective so long as they did not run afoul of antitrust laws or constitute patent misuse. This author has long argued that the Federal Circuit's interpretation of Supreme Court precedent was incorrect0that post-sale restrictions could not prevent patent exhaustion, as set forth in cases dating from the 1917 case Motion Picture Patents v. Universal Film to the 2008 case Quanta Computer v. LG Electronics. A per se prohibition on contracting around exhaustion is justified by multiple policy principles, including (1) the policy against restraints on alienation of personal property; (2) the policy against compensation for patent holders above what is necessary to promote invention (commonl2 known as "double-reco&er2")) +!) the need to protect the boundary between federal patent law and the common law of contracts and property; and (4) all of these policies in addition to judicial efficiency when parties attempt to evade exhaustion in drafting a patent license agreement to settle litigation. Some scholars argue that contracting around exhaustion allows for welfare gains such as increased output and vertical price discrimination. These scholars contend that the policy against restraints on alienation is a misunderstood and outdated relic of the common law; and that the policy against double-recovery has no empirical justification. To the contrary, total exhaustion protects modern consumers by preserving the used resale market, reducing the cost of goods, and protecting consumers from being locked into particular brands and secondary products. Arguments against total exhaustion for consumer goods fail to account for the inefficiencies of personal property servitudes, such as the uncertainty and research costs resulting from post-sale restrictions, hidden costs of products through tied secondary products, notice costs for licensed manufacturers, and the need for costly litigation to test the validity of contractual restrictions under rule of reason economic analysis.litigation that will rarely occur because it is beyond the reach of the great majority of consumers. In short, the Supreme Court was correct as a matter of its own precedent and of sound policy that contractual post-sale restrictions are wholly ineffective to prevent exhaustion, regardless of whether they run afoul of antitrust law or constitute patent misuse. Patent law is not the poor stepchild of antitrust law. It pursues separate policies. Moreover, to the extent contracting around exhaustion is economically desirable for high-end, non-consumer goods, the Court's opinion does not result in absolute e4haustion in all circumstances. Pre-sale restrictions and leases may remain viable options for patent holders to evade exhaustion. For high-end, non-consumer products where there are lower transaction and notice costs relative to the price of the product, these avenues are practicable, and the concerns with servitudes and double recovery adhering in the consumer goods context are ameliorated. [ABSTRACT FROM AUTHOR]

In the decision discussed in this case comment (Tom Kabinet (C-263/18), the CJEU pulled the plug on second-hand markets for copyright-protected intangible works. From the decision it follows that the UsedSoft-doctrine, according to which the right to distribution exhausts after the first online sale of a computer program, only applies to other tangible (digital) works. The spreading of intangible works falls within the scope of the exclusive right to communicate to the public, to which the exemption of exhaustion does not apply. This marks a new era for the application of the principle of exhaustion in an online context. [ABSTRACT FROM AUTHOR]

The article focuses on decision of the U.S. Supreme Court's decision in in the case Impression Products v. Lexmark International, Inc. which applies patent exhaustion to both conditional sales and foreign sales. It mentions alternative framework which allows a narrow exception to the patent exhaustion to balance patent owners' rights and consumers' rights. It also mentions patentees' rights and consumer rights without unduly sacrificing the importance of free commerce.

The article discusses developments in intellectual property law including cases between October 1, 2016 and September 31, 2017. These cases include patent in "SCA Hygiene Prods. Aktiebolag et al. v First Quality Baby Products LLC," copyright protection for artistic features of useful articles in "Star Athletica LLC v. Varsity Brands Inc.," patent venue in "TC Heartland LLC v. Kraft Food Brand Group LLC" and patent exhaustion in "Impression Products Inc. v. Lexmark International Inc.

The Supreme Court rejected the use of patent law to enforce conditional sales contracts in Impression Products v. Lexmark. The case appears to be just another step in the Supreme Court's ongoing campaign to reset the Federal Circuit's patent law jurisprudence. However, the decision casts a shadow on cases from all federal circuits that have enforced software licenses for more than 20 years and potentially imperils the business models on which software developers rely to create innovative products and to bring those products to market in a variety of useful ways. For over two decades, we could say that the license is the product-- software provides the functionality but the license provides what can be done with the software. Impression Products now raises a critical question for the software industry: is the license still the product? This Article answers that question by assessing the impact of the Impression Products case on software licensing. Fortunately, the case does not disrupt licenses used to develop products and leaves adequate room for innovative distribution licensing. Although the Supreme Court shut the door on enforcing end-user licenses using patent law, it left the door wide open for enforcing licenses using contract law. By linking the patent exhaustion and copyright first sale doctrines, the Supreme Court also seemed to shut the door on using copyright law to enforce end-user licenses. Although that linkage is accurate, the statutory scope of the copyright first sale doctrine differs from common law patent exhaustion, suggesting that end-user licenses still can be enforced using copyright law. To clarify this, however, Congress should amend the Copyright Act to explicitly recognize that end-user licenses are not copyright first sales. As Congress and the courts begin to address software licensing in the aftermath of Impression Products, one guiding principle seems clear--both software developers and users will be better served if the license is still the product. [ABSTRACT FROM AUTHOR]

This article considers the problem of parallel importation of patented products in Thailand in the light of the ASEAN Economic Community (AEC). One of the objectives of the AEC is to promote the free movement of goods and a single market within the Southeast Asia region. But, the exhaustion provision in section 36(7) of the Thai Patent Act 1979 makes it difficult for Thailand to achieve such an objective because it is unclearwhether this provision is applied as national exhaustion or international exhaustion. Also, this exhaustion provision can only apply to the petty patent and the patent for invention, but cannot apply to the design patent, so the design patent owner can prevent parallel importation of products embodying the registered design from other ASEAN countries into Thailand. In order to achieve the AEC objective, this article argues that a regional exhaustion approach like that of the EU is appropriate for Thailand, but the wording of the current exhaustion provision does not support the application of a regional exhaustion approach. Hence, this article suggests that changes should be made to several provisions in the Thai Patent Act 1979 in order to make them compatible with the regional exhaustion approach. Such a change should ensure that the exhaustion provision can be applied to the design patent. Also, the proposed change should ensure that if the products are manufactured by the holder of a compulsory licence in another country and imported into Thailand without the consent of the patent owner, then the patent owner in Thailand should be able to prevent it. The additional legal measure, which provides a means of access to the complaints procedures of the relevant safety authorities in the circumstance where the patented products imported from other ASEAN countries are not safe, should be introduced. Also, a change should be made to some border measures provisions in order to allow such provisions to apply where the imported products infringed the patent right in the same manner as they apply in the context of trademark and copyright. [ABSTRACT FROM AUTHOR]

In its UsedSoft and Ranks judgments the CJEU interprets the concept of distribution and its digital exhaustion with regard to copyright on computer programs. Both concepts are read in a way that deviates from their meaning concerning copyright on other works. The reasons for that divergence are analysed and criticised. The Computer Programs Directive should be interpreted in conformity with the WIPO Copyright Treaty. Case law should distinguish between the specific rationales that underlie certain aspects of the exhaustion doctrine. The CJEU's autonomous interpretation of the sale condition for exhaustion is unfortunate, among other things because downloaded copies are not goods subject to transferrable ownership. Copyright law is not digital property law. The sale concept is drifting away from its original meaning. Concerning the exceptions to the reproduction right on programs, it is upheld that back-ups cannot be provided to third parties. Subsequent acquirers of programs by contrast do qualify as lawful acquirers who can benefit from the exception for intended use. Calling on this exception, the Court seems to set course to the recognition of a resale and/or download right of some kind. In sum, the meaning of exhaustion has evolved from a boundary of an exclusive right, over a higher norm to a subjective right of a third party. In reality, the debate could be simplified by looking at rights rather than copies. With regard to the supply of digital content, the simultaneous existence of a material-object and licence contract should be recognised. The former can be a sales or service contract. On-line deliveries are services. Whoever holds a right to a service, can principally transfer that right and the licence to third parties. Applying the same rationales that underlie the exhaustion doctrine would mean that clauses preventing such transfers are void. The actual exhaustion doctrine however need not be applied. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Supreme Court case Impression Products Inc. v. Lexmark International Inc. regarding the patent infringement suit. It examines the uniformity and automatic patent exhaustion for cartridges sold in abroad. It also stresses the patent rights of the manufacturers of the imported products.

The Federal Circuit, the US court for patent appeals, has revived a doctrine that effectively nullifies the patent exhaustion doctrine. At the same time, that court has narrowly interpreted and sought to cabin US Supreme Court decisions declaring a broad concept of patent exhaustion. In December 2016 the Supreme Court granted certiorari to review the Federal Circuit s recent Lexmark decision which held en banc that disobeying a post-sale restriction—in this case one against refilling patented toner cartridges for printers—creates patent infringement liability. It is widely considered that the Supreme Court will reverse the judgment, ruling that patentees cannot impose conditions on their customers ’ post-sale use or disposition of patented products. But it is likely that the Supreme Court s desire for unanimity in patent cases will cause it to issue a narrow, fact-specific ruling that leaves unresolved many important questions about the scope of the patent exhaustion and the efficacy of possible ways around it. [ABSTRACT FROM AUTHOR]

As an organising principle within multi-level governance systems, subsidiarity stipulates that decisions should be taken at the lower of any two levels of politico-legal organisation, unless compelling reasons argue in favour of moving decision-making to the higher level. In the judicial field, the principle has found expression, procedurally, in the exhaustion of domestic remedies rule and, substantively, in the margin of appreciation and similar deference-granting doctrines. These judicial manifestations of the subsidiarity principle should particularly likely to appear in the context of courts exercising jurisdiction over individual human rights complaints. This article investigates the extent to which three sub-regional courts in Africa that shortly after their creation began to foray into the human rights domain – the ECOWAS Community Court of Justice, the East African Court of Justice, and the Tribunal of the Southern African Development Community – have recognised subsidiarity as a guiding principle for the exercise of their human rights jurisdiction. Contrary to expectations, neither the exhaustion of domestic remedies rule nor margin-of-appreciation-type doctrines have so far played any meaningful role in the human rights jurisprudence of the three sub-regional courts. [ABSTRACT FROM AUTHOR]

The present article focuses on the exhaustion of trade mark rights under Chinese law. It analyses the relevant law and case law, comparing and contrasting them with the European and US legislations. It concludes that the law of the PRC does not regulate clearly the parallel imports of trade marked goods, and argues that this gap must be filled by the law-maker as soon as possible. [ABSTRACT FROM AUTHOR]

The article discusses the imports of goods with trademarks in Canada, focusing on the lack of legislative provision in the region for the same, and trademark infringement cases handled by lower courts as well as compares it with the U.S. and European Union (EU) laws.

In this Article I argue that intellectual property (IP) exhaustion should be understood against the backdrop of a long history of skepticism toward what 1 call "remote-control" property rights. IP is not the only field of law that gives remote rights-holders the ability to constrain the behavior of other people to use things in their rightful possession. Tangible property law-in particular the law of servitudes-features similar mechanisms, but hems them in with doctrinal limitations. Looking to this body of law helps us more clearly to recognize remote-control property's benefits and costs and, thus, to articulate a rationale for IP exhaustion as a limitation on remote-control IP. At the same time, remote- control IP is special. Restrictions on the use of works of creativity and invention have implications for the promotion of progress of science and the useful arts. It is especially important that such restrictions not be ratcheted up solely at the whim of IP owners attaching labels to embodiments of their works. Nor should such restrictions be left solely to generally applicable commercial law without regard to IP's special policy concerns. Instead, courts and Congress should continue to absorb the wisdom of the common law of tangible property while crafting an IPspecific exhaustion policy that is attentive to the specific costs and benefits of remote-control IP. [ABSTRACT FROM AUTHOR]

Patent exhaustion is a doctrine that excuses infringement where the patent holder has either authorized the sale of a patented item or licensed its use or sale. Absent an effective contractual restriction, the patent holder's rights in the patented item are exhausted and the patent holder cannot sue for infringement based on further use or resale of the item. This Article explores the question of whether patent exhaustion adheres in the patented device or if it is a defensive doctrine that only adheres to the benefit of particular parties. Traditionally courts have articulated the doctrine as liberating the accused product from patent rights, allowing it to pass through the stream of commerce to subsequent users with all rights exhausted. With respect to actual holdings, however, the Federal Circuit recently concluded that exhaustion has only excused infringement in the case law where the claim of infringement was against an "authorized acquirer" of the device, or against a party accused of inducing or contributing to the infringement of such an authorized acquirer. Apparently a third party can be liable for infringement by unwittingly taking action that facilitates the end user's use of the device for its intended purpose, even if the device is licensed to perform that function. This Article argues that the exhaustion doctrine should not be limited to shielding authorized acquirers of a patented device or any other particular classes of persons. The Supreme Court has never pronounced such a limitation on the doctrine. Rather, the Court has consistently characterized exhaustion as adhering in the patented device itself, allowing it to pass unimpeded through the stream of commerce to be used for its intended purpose. A conception of patent exhaustion as adhering in the patented device is supported by all of the policy theories that have been used to justify the doctrine. The exhaustion doctrine has traditionally been justified by (1) a policy to retain the balance between the need to encourage invention and the harm of a limited monopoly by ensuring that the inventor does not receive double recovery for the value of the patented invention and (2) the policy against restraints on alienation of servitudes. Recently scholars have argued that the patent exhaustion doctrine serves a third purpose: to guard the domain of the federal patent law, such that it does not interfere with the general commercial law of contracts. In fact, the Supreme Court has long embraced all three theories as supporting patent exhaustion. Moreover, all three theories support a concept of patent exhaustion as adhering in the patented device. If the purpose of the exhaustion doctrine is to police the domain of intellectual property statutes, such that they do not interfere with commercial law, then the ability of patent holders to police the use of downstream goods is properly limited by contract law rules such as privity of contract and unconscionability. Patent rights must be exhausted to avoid interference with those laws. If the exhaustion doctrine is justified by the related statutory domain policy against overcompensation for patent holders for the use of their patented inventions, then third parties should not be charged for interacting with patented devices for which the patent holders have already received market - based compensation. If the exhaustion doctrine is justified by the common law policy against restraints on alienation of chattels, then exhaustion adheres in the patented goods, such that they may move down the stream of commerce unimpeded with restrictions on their lawful and intended uses. [ABSTRACT FROM AUTHOR]

Part 1 of this article discussed the historical development of the US exhaustion doctrine to the present. This Part 2 discusses a recent decision of the Federal Circuit that involves a complex licensing scheme with an unusual pattern that gives the scheme characteristics arguably bringing it into conflict with the exhaustion doctrine, on the one hand, but safely within the doctrine permitting the licensing of limited fields of use, on the other hand. The author suggests that the Federal Circuit's reasoning in reversing a grant of summary judgment against the scheme is not faithful to Supreme Court precedent, because it imposes an erroneous standing requirement on invoking the exhaustion doctrine and uses an unduly narrow standard to determine whether what is sold and what infringes the patent are sufficiently alike to trigger the exhaustion doctrine. Nonetheless, the court may have reached a correct result in the particular case: unresolved and unaddressed issues could be essential to determining the proper outcome, precluding summary judgment. In any event, for practical reasons, the Federal Circuit s new doctrine may greatly limit the future application of the exhaustion doctrine in several fields of new technology, particularly information technology. That may suggest a need to devise a new legal analysis to supplement the exhaustion doctrine. A form of equitable estoppel analysis, based on the underlying conceptions of the British Leyland case, is proposed to provide that supplement. [ABSTRACT FROM AUTHOR]

The ingenuity of patent lawyers tests the limits of two important doctrines governing the distribution of patented goods. A recent decision of the Federal Circuit involves a complex licensing scheme with an unusual pattern that gives the scheme characteristics arguably bringing it into conflict with the exhaustion doctrine, on the one hand, but safely within the doctrine permitting licensing of limited fields of use, on the other hand. The author suggests that the Federal Circuit's reasoning in reversing a lower court s grant of summary judgment is notfaithful to Supreme Court precedent, because it imposes an erroneous standing requirement on invoking the exhaustion doctrine and uses an unduly narrow standard to determine whether what is sold and what infringes the patent are sufficiently alike to trigger the exhaustion doctrine. Part 1 of this two-part article traces the development of the US exhaustion doctrine to the present. Part 2 will address the Federal Circuit's controversial judgment in this case, which may greatly limit the application of the exhaustion doctrine by providing a way to circumvent it; and then discusses a new legal analysis to supplement the exhaustion doctrine, based on equitable estoppel. [ABSTRACT FROM AUTHOR]

The article discusses the decision of the U.S. Supreme Court in the case "Kirtsaeng v. John Wiley & Sons Inc." concerning copyright laws; reports laws that imposed a geographical limitation on the patent exhaustion doctrine; and mentions the U.S. copyright laws.

If we study the intellectual rights of an owner of any intellectual property, be it patents, trademarks or copyrights, one would surely realize, how important these intellectual rights are for any intellectual property owner. These rights - economic and moral - provide the owner with material rewards, reputations and most importantly, an incentive to work further. But once these rights are exhausted the owner cannot further take the plea of his intellectual rights and claim for damages. However this question of extent of exhaustion of rights pops up in case of parallel imports, where the product are manufactured and sold genuinely but are distributed in jurisdiction where they are not intended to be distributed. In such cases the question comes that, why, if the owner has once exhausted his rights over the product by selling it genuinely, the subsequent seller in another jurisdiction is held guilty. The paper addresses this question and compares the legal scenario concerning parallel importation among different countries, with focus on India. [ABSTRACT FROM AUTHOR]

A bedrock principle of patent law-patent exhaustion-proclaims that an authorized sale of a patented article exhausts the patentee's rights with respect to the article sold. Over one hundred and fifty years of case law, however, has produced two conflicting notions of patent exhaustion, one considering exhaustion to be mandatory regardless of whether the patentee subjects the sale to express patent restrictions, and another treating exhaustion as a default rule that applies only in unconditional sales. The uncertainty surrounding the patent exhaustion doctrine casts a significant legal cloud over patent licensing practices in the modern economy and has emerged as a central subject in scholarly debate on the nature and scope of intellectual property rights. This Article takes a normative approach to patent exhaustion and argues that the correct exhaustion rule should be a "default-plus" rule that combines a default-rule component with a patent misuse test that is independent of the exhaustion analysis. The default-rule component would allow patentees to avoid exhaustion through express patent restrictions, while the patent misuse test would ensure that such restrictions do not violate public policy. This Article contends that this default-plus rule is superior to the mandatory rule in terms of theoretical foundation, malleability, and circumvention. Adopting this default-plus rule would minimize legal impediments to socially beneficial patent restrictions while preserving maximum flexibility in accommodating new technologies and licensing practices. [ABSTRACT FROM AUTHOR]

The article discusses whether this expansion of patent exhaustion is necessary or justified in the U.S. Topics discussed include development of the patent exhaustion doctrine under the common law; antitrust concept aimed to prevent patent misuse; application of the doctrine of patent misuse; and the U.S. Supreme Court's decision in Bloomer v. McQuewan.

Today's debates around the exhaustion doctrine it's characterized by the confrontation between old and new conceptions of the intellectual property system. Notwithstanding, such tensions do not differ from the longstanding coexistence between the property and market rules. This review article aims to identify the origin of the exhaustion's explanatory theories in the United States, the European Union and Colombia targeting the current tensions of this figure. [ABSTRACT FROM AUTHOR]

The article discusses the legal aspects of parallel importation (gray market) trade in patented pharmaceutical products as of 2015, and it mentions the exhaustion of rights in international law, free trade, and access to medicines in Africa. The legal rights of intellectual property (IP) holders are addressed, along with the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). An Anti-Counterfeiting Trade Agreement is also examined.

The article focuses on the importance of patent exhaustion doctrine in protecting the legitimate purchasers of patented items. Topics discussed include protection of legitimate purchasers from restrictions of patent owners, laws for the regulation of application procedure for patent licenses, and case law behind the patent exhaustion doctrine.

The article discusses the fair and equitable exceptions for farming practice in plant intellectual property rights protection in Taiwan. Topics discussed include privilege of farmers in plant variety rights system, conditional exhaustion of right doctrine, and the use of legal reform adapt compulsory licensing to agricultural issues.

The article discusses the territorial scope of U.S. patent law in relation to the claim that American courts have yet to articulate a complete framework for applying the U.S. patent exhaustion doctrine (PED) to foreign sales as of January 2015. The nation's PED holds that the authorized first sale of a patented good terminates the patent holder's right to restrict the buyer's subsequent use and sale of that good. Several rulings by the U.S. Court of Appeals for the Federal Circuit are examined.

The digital shift in distribution, from markets premised on disposing of physical artifacts to markets defined by data flows, is among the most important changes in the copyright landscape since the enactment of the 1976 Copyright Act. The disconnect between this new reality and our current statutory rules is particularly evident when it comes to the question of exhaustion. The first sale doctrine embodied within Section 109 was constructed around a mode of dispossession that is rapidly becoming obsolete. As a result, the benefits and functions it has long served in the copyright system are at risk. Building on our earlier work, this Article will argue that a meaningful exhaustion doctrine should survive the digital transition. After explaining the two primary hurdles to digital exhaustion under the existing statutory regime, we outline two possible approaches to legislating digital exhaustion, concluding that a flexible standards-based approach that vests considerable authority with the courts is the better solution. [ABSTRACT FROM AUTHOR]

The relationship between intellectual property rights and technologies used to protect such rights has been gaining more and more attention in recent years. This has mostly been in the field of copyright and digital rights management technologies (DRMs). However, challenges raised by certain biotechnologies and their inherent reproductive nature have caused patent and plant variety right (PVR) owners to similarly create genetic use restriction technologies (GURTs) to protect their rights. Arguments analogous to those raised in the copyright arena have been made that GURTs exceed the rights of patentees and PVR owners, and prevent permitted uses from being undertaken. This article discusses these arguments in light of recent case law on the exhaustion doctrine, exactly what it is that GURTs do and the permitted uses in patent and PVR law. It concludes that the US Supreme Court decision Monsanto v Bowman, along with the nature of GURTs, the patent specification and the limited exceptions to patent infringement, mean that GURTs actually fit well with patent law and policy. However, the same cannot be said about GURTs used to protect PVRs, due to the different standards for registration and more extensive exceptions to infringement. [ABSTRACT FROM AUTHOR]

The article reviews the relationship between the doctrine of patent exhaustion and self-replicating technologies in reference to decision of the U.S. Supreme Court on the case Bowman v. Monsanto Co. Topics discussed include the use of utility patents by the seed companies for restricting the use of patented genetically engineered (GE) plants by farmers, application of patent exhaustion doctrines in patent infringement lawsuits, and the benefits of GE crops to agricultural industry.

The article focuses on the application of the patent exhaustion doctrine to the refurbishing industry for promoting the technological progress with the sustainable development. Topics discussed include tension between the refurbishing business and the underlying patent policy, reconciliation of patent law with commercial refurbishment and need of attempts to protect intellectual property (IP) rights conflict with goals of sustainable development.

This paper investigates patent licensing in vertically disaggregated industries, where patent holders may license to upstream producers only, downstream producers only, or to both upstream and downstream producers. We consider whether consumer welfare will be greater if the patent holder's ability to license multiple parties along a production chain is restricted. We also analyse whether a policy that restricts licensing to upstream manufacturers constitutes appropriate public policy. These questions have significant policy implications. Under the legal doctrine of first sale, or patent exhaustion, a patent holder's ability to license multiple parties along a production chain is restricted. How and when such restrictions should be applied is a controversial issue, as evidenced by the US Supreme Court's granting certiorari in the Quanta case. Some commentators have even argued that refusing to license to upstream component manufacturers may constitute an abuse of dominance and thus infringe the competition laws. We find that under ideal circumstances how royalty rates are split along the production chain has no real consequence for social welfare. Even when we depart from ideal conditions, however, we still find no economic justification for restrictions of the patent holders' ability to license multiple parties or to license to downstream producers only. [ABSTRACT FROM AUTHOR]

The article discusses the potential impact that the U.S. Supreme Court's ruling in the 2013 textbooks resale-related legal case Kirtsaeng v. John Wiley & Sons Inc. might have on the U.S. Court of Appeals for the Federal Circuit's stance on international patent exhaustion, sellers' rights, and America's first sale copyright law doctrine. Graduate student Supap Kirtsaeng of Thailand, the U.S. Copyright Act, and "gray market" activities involving goods such as textbooks are examined.

The first sale doctrine provides that when a patent holder unconditionally authorizes another party to sell a patented item, the patent holder's right to exclude with respect to the patented item is "exhausted. " The licensee can then sell the patented item to a third party--a downstream purchaser--and the patent holder will not be able to sue the third party for patent infringement based on the resale or other use of that item. A principal animating policy behind the exhaustion doctrine is to prevent patent holders from receiving overcompensation for their patented inventions by, for example, aggregating royalties along multiple points in the production and distribution chain. Patent holders settling infringement litigation often seek to draft a license agreement that precludes application of the exhaustion doctrine, so that they may continue to pursue licensed products downstream. Such provisions are likely ineffective if drafted as post-sale restrictions on what downstream purchasers may do with their patented products. However, it is possible to contract around exhaustion by limiting the scope of the authorized sale (a "pre-sale restriction") or through other clever licensing devices that are described in this paper. But should such provisions be enforceable? The prevailing view in the academic literature argues from a law and economics perspective that it is economically efficient to allow patent holders to license their patents at multiple points along the production chain, and that the free market will curb patent holders ' ability to receive double-recovery. This article counters the law and economics literature to argue that such provisions should not be enforced if they are brokered as part of a litigation settlement. The litigation settlement context distorts the economic efficiencies allegedly created by contracting around exhaustion and can prevent free market checks on double-recovery. The expense and risk of litigation, the threat of injunctions, and the pressure to settle can weigh heavily on the patent infringement defendant. The license fee that is negotiated may not be sufficiently discounted to account for the reservation of downstream rights preserved by the patent holder. This is particularly true in light of research in cognitive psychology indicating that litigants do not engage in economically rational behavior in making settlement decisions. Defendants will likely favor a lower settlement price in exchange for a provision contracting around exhaustion, and take the risk that litigation against downstream customers will be defeated or that indemnification can be avoided. If there is a clear rule against contracting around exhaustion, the parties will set the license fee at a rate that gives the patent holder full compensation up front, and the defendant can simply pass along this extra cost to downstream purchasers. This efficiently avoids the costs of additional litigation against downstream purchasers. [ABSTRACT FROM AUTHOR]

This article examines the different approaches that European courts, and particularly the CJEU, have taken to trade mark protection depending upon whether they are dealing with exhaustion or with validity and infringement. In particular, it argues that, in relation to the former, the courts will seek to balance the differing interests of parties involved in parallel trade, including competitors and the public, rather than privileging the rights of the trade mark proprietor. To illustrate this point it examines key cases in this area, including those relating to art 7 TMD, arts 34 & 36 TFEU and arts 101(1) and 102 TFEU. It then asks whether it would be possible to interpret the Trade Mark Directive in a similar, and balanced way, and concludes that it would. It notes, in particular, that following the courts' emphasis on the multiple functions of trade marks, there has been an increasing readiness to recognize and protect the interests of different market actors. It concludes with a counterfactual, L'Oreal v Bellure, widely considered a high water mark of trade mark protection. It suggests that if the law as it has developed in relation to exhaustion were applied to the facts of this case, the outcome would have been markedly different. This article asks whether such an outcome might be preferred, as being more favourable to promoting competition within the common market. And it posits that the ‘exhaustion approach’ to trade mark protection is moving towards the mainstream. [ABSTRACT FROM PUBLISHER]