Exhaustion v. Non-Exhaustion— Deciphering The Federal Circuit’s Lexmark Decision And Its Implication On Technology Transactions

By Jiang Bian

On February 12, 2016, the United States Court of Appeals for the Federal Circuit issued its en banc (where a case is heard before all the judges of a court) decision Lexmark International, Inc. v. Impression Products, Inc., which confirmed that, despite recent decisions of the United States Supreme Court supporting exhaustion of intellectual property rights after the initial sale, the Federal Circuit’s patent exhaustion jurisprudence (or so called, “patent non-exhaustion doctrine”) enumerated in its prior rulings, Mallinckrodt, Inc. v. Medipart, Inc., and Jazz Photo Corp. v. International Trade Comm’n, remains good law (at least before the Supreme Court decides to explicitly override the two decisions) with respect to the following two issues, respectively:

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