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000041945 1001_ $$aTur-Sinai, Ofer
000041945 24503 $$aExhaustion in the Service of Progress
000041945 264_1 $$a[New York City, New York] :$$bYeshiva University Benjamin N. Cardozo School of Law,$$c2019.
000041945 300__ $$a36 pages
000041945 336__ $$atext$$btxt$$2rdacontent
000041945 337__ $$aunmediated$$bn$$2rdamedia
000041945 338__ $$avolume$$bnc$$2rdacarrier
000041945 520__ $$aUnder  the  doctrine  of  patent  exhaustion,  an  authorized  sale  of  a patented  item  exhausts  the  patentee’s  rights  with  respect  to  that  item, leaving  the  purchaser  and  subsequent  owners  free  to  use or  resell  it without  fear  of  an  infringement  lawsuit.  In  2017,  the  U.S.  Supreme Court  issued  its  landmark  decision in Impression  Products  v.  Lexmark International,  which  strengthened  the  exhaustion  doctrine  in  various significant  ways.  The  Court  held  that an  authorized  sale  of  a  patented item  exhausts  all  patent  rights  with  respect  to  that  item,  regardless  of any  restrictions  on  use  or  resale  the  patentee  purports  to  impose.  The Court  further  held  that  exhaustion  is  triggered  not  only  by  local  sales but  also  by  authorized  sales  outside  the  United  States.  The  decision  is likely to have considerable implications across various industries.This  Article  examines  the  immensely  valuable  but  underexplored role that the exhaustion doctrine could play in the context of cumulative innovation. Research and development efforts often involve the need to use  earlier  patented  inventions.  Yet,  licensing  transactions  between follow-on inventors and patent owners are characterized by particularly high  transaction costs  and  other  factors  that  may impede  the  ability  of the parties to reach an agreement. As a result, the patent system ends up at times stifling technological progress rather than promoting it.This  Article  demonstrates  that  this  concern  may  be  mitigated  by the Impression  Products decision.  The  patent  exhaustion  doctrine,  as construed  by  the  Supreme  Court,  could  constitute  an  effective  policy tool  for  facilitating  cumulative  innovation  in  a  variety  of  settings.  For instance,  under  the  post-Impression  Products exhaustion  doctrine,  a patent  owner  would  not  be  able  to  invoke  patent  law  to  prevent  a purchaser of a patented product from reverse engineering said product while  developing  an  improved  version  or  a  compatible  product,  using the  patented  product  as  a  research  tool  in  the  investigation  of  any subject  matter,  or  combining  the  product  with  other  components  or integrating   it   into   a   larger   system.   Most   importantly,   the post-Impression Products exhaustion doctrine would shield such activities of a   follow-on   inventor   notwithstanding   any   contractual   post-sale restrictions and regardless of the location of the sale. Overall, applying the exhaustion doctrine to cumulative innovation settings in the manner proposed by this Article could have vast implications for our innovation ecosystem.
000041945 525__ $$aPublished in : Cardozo Arts & Entertainment Law, vol. 37, no. 1
000041945 650_0 $$aPatent exhaustion
000041945 650_0 $$aCumulative innovation
000041945 650_0 $$aContract law
000041945 85641 $$uhttp://www.cardozoaelj.com/wp-content/uploads/2011/02/TUR-SINAI_ARTICLE.pdf$$yView this resource
000041945 904__ $$aJournal article
000041945 980__ $$aBIB