Yesterday, in Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court held that if a copyright owner authorizes manufacture and sale of a copyrighted work abroad, the first sale defense protects a buyer's ability to resell that work in the United States. The Supreme Court concluded the Second Circuit mistakenly imported a geographic limitation (United States only) into the phrase "lawfully made under this title," which reduced the scope of the first sale defense inconsistent with the copyright statute, the legislative history, and the common law. As Michael Barclay of IP Duck deftly puts it in Roundup of Commentary on Kirtsaeng v. John Wiley: "if you buy something, you own it."
Although a copyright case, Harold Wegner of Foley & Lardner expects the Supreme Court to grant, vacate, and remand (GVR) Ninestar Technology Co., Ltd. v. International Trade Commissioner to the Federal Circuit to review the scope of patent exhaustion in view of Kirtsaeng given the certiorari petition asks: "Whether the initial authorized sale outside the United States of a patented item terminates all patent rights to that item."
Update March 25, 2013: The Supreme Court denied Ninestar's petition for certiorari seeking review of the law of international patent exhaustion.
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