International IP Exhaustion and the Judgment of the Supreme Court of the United States in Impression v. Lexmark

Setting the Stage – IP Exhaustion

IP rights are neither perpetual nor limitless. In fact, IP rights are inter alia limited in scope, duration and by express exceptions. A sometimes forgotten limitation of IP rights is exhaustion, or the “first sale doctrine”, which is the name it bears in the U.S.

In essence, the IP right related to a certain article is considered to be exhausted once it has been sold with the consent of the IP holder. From a geographical perspective, two alternative principles (leading to very different outcomes) can be distinguished. The first one is national exhaustion, which entails that only a sale of an article within the relevant national territory would exhaust the IP right. According to a second principle, such territorial distinction is not recognized, i.e., a sale anywhere in the world can exhaust the IP right (international exhaustion).

In the U.S., the United States Court of Appeals for the Federal Circuit (Federal Circuit) as well as the Supreme Court of the United States (SCOTUS) have considered the question of exhaustion from many different perspectives in their earlier judgments. In this article, I will discuss the judgment of the SCOTUS in a quite recent case regarding exhaustion, Impression v. Lexmark. The judgment was handed down on 30 May 2017.

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Sad to CJEU Go? What Brexit Could Mean for Intellectual Property (part 2 of 2)

Guest post by William Wortley*

In this article we conclude our look at the potential implications of Brexit on the European intellectual property law framework. (Part 1 can be seen here).

Copyright

Although copyright is less harmonised than other areas of IP, it does not escape the potential ramifications of a “hard” Brexit. The Commission has signalled its intention to push forward with the Digital Single Market (DSM) Strategy, reshaping copyright to make it fit for the digital age. Certain legislation, such as the proposed Content Portability Regulation, are expected to come into force prior to the UK’s exit from the EU, although this will not stop it potentially losing effect post-Brexit if a settlement is not achieved. The regulation allows EU consumers to access digital content provided in their Member State of residence if temporarily in another Member State. If the content localisation provisions no longer applies after Brexit, content providers in the UK will be severely hampered by having to negotiate licences in the remaining Member States. The issue is of commercial importance to UK businesses, Continue reading “Sad to CJEU Go? What Brexit Could Mean for Intellectual Property (part 2 of 2)”