The Exhaustion Theory Is Not Yet Exhausted Part 3

By Erik Verbraeken

Erik Verbraeken

Johnson Controls

2013 has been rich in the issuance of various court decisions, from the Supreme Court to the District Courts, that provide further guidance on the application of the intellectual property exhaustion doctrine (a.k.a. the "first sale" doctrine) to sales of products made by unauthorized third parties.Without giving an exhaustive overview of all judicial cases that may have been tried in 2013, this article will focus on the following six decisions: (1) Kirtsaeng vs. John Wiley Inc. (Supreme Court March 19, 2013), (2) Bowman vs. Monsanto (Supreme Court May 13, 2013), (3) Capitol Records vs. Redigi (NY District Court March 30, 2013, (4) Keurig vs. Sturm Foods (Federal Circuit October 17, 2013), (5) Lifescan Scotland vs. Shasta Technologies (Federal Circuit November 4, 2013), and (6) Tessera vs. ITC (Federal Circuit May 23, 2011). In addition, this article will comment these decisions from a EU perspective, where in some instances similar, but in other cases radically different decisions have been given.

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