Lexmark and Exhaustion Strategy

This is just a quick update that some of the LawMux materials regarding licensing strategy are probably going to be out of date soon (and arguably already are).

Lexmark is on cert to the Supreme Court and the Solicitor General weighed in against CAFC, so SCOTUS will probably grant cert (Solicitor General’s brief here).  I was skeptical at first, but he makes some good points about distinguishing General Talking Pictures and the rule applied by CAFC.   Very well-reasoned.  I’d need to very carefully sift through the cases and the CAFC opinion to see what the strongest counter-argument is (bit too busy at present), so I’m not sure what the likely outcome will be if SCOTUS takes it up.  Again, while Lexmark is about “exhaustion for sales”, it also has implications for “sales” by authorized licensees.

In any event, for the immediate future, any IP deal seeking holistic or even semi-universal market control for a potentially reusable product should be approached with the same gravitas you’d give a rusty landmine in a nursery.    Whichever way SCOTUS comes out, that will likely remain true.