A Framework for Patent Exhaustion of Self-Replicating Technologies

The doctrine of patent exhaustion extinguishes a patent owner’s rights of exclusion over the use, sale, and import of objects that have been the subject of a patentee-authorized sale. But the doctrine appears to break down in the context of a crucial segment of the modern invention economy: self-reproducing technologies. Despite these technologies’ growing importance, there is currently no clear guidance for applying exhaustion to self-reproducing technologies. The Supreme Court has most recently addressed exhaustion in Bowman v. Monsanto in 2013 and in Impression Prods. v. Lexmark in 2017. But these two cases speak to different parts of the problem, and have not yet been integrated. Furthermore, the Court in Bowman explicitly left open two questions about how exhaustion might apply to self-reproducing technologies, both of which remain unanswered. This Note provides the first comprehensive integration of modern exhaustion caselaw with self-reproducing technologies. By integrating Bowman, Lexmark, and a tort-based understanding of infringement, this Note presents a concise and robust framework—which I have termed “Bowmark”—for applying exhaustion to self-reproducing technologies beyond Bowman’s limited holding. Finally, I show that this framework is workable against Bowman’s open questions, revealing that, to the extent that there are still gray areas regarding the role of patent law in the situations explicitly un-addressed by Bowman, those gray areas do not involve exhaustion.