The no-change decision in Cuozzo was the biggest immediate patent law news from June 20, 2016. However, two other actions by the court that day may end up having a greater long term impact. Namely, that same day the court called for the views of the US Solicitor General (CVSG) in both Impression Products v. Lexmark and Sandoz v. Amgen.
- Impression Products, Inc. v. Lexmark International, Inc., No. 15-1189 (petition for writ of certiorari filed March 21, 2016; 8 briefs filed in support).
-
Sandoz Inc. v. Amgen Inc., et al., No. 15-1039 (petition for writ of ceritorari filed February 16, 2016; 4 briefs filed in support); and Amgen Inc., et al. v. Sandoz Inc., No. 15-1195 (counter-petition filed March 21, 2016).
Standing alone, a CVSG order significantly increases the odds that a particular case will be granted certiorari. Those odds would then be significantly increased again if the SG supports certiorari. These cases are largely ancillary to patent prosecutors because they focus on how a patent is used. Yet, their impact could shape the business model of patents licenses as property.
I don’t see much impact on the “business model of patent licensing.” Because, as noted earlier, until this surprise Lexmark v. Impression Products Fed. Cir. panel decision, few business decisions were made on the assumption that post-sale restrictions running with personal property [chattel] goods were enforceable under patent law [rather than under contract law – requiring purchaser and re-purchaser agreement] in view of prior Sup. Ct. decisions on that and “first sale” aka “patent exhaustion” over many years.
Paul, I you sure about that? Software licensors seem to assume that their license agreements would be enforceable against purchasers of lawfully own copies.
Should be, “lawfully owned copies.”
Ned,
Your post does not account for the (purposeful) conflation and obfuscation of the “sale” versus “lease” terminology that afflicts the software industry (and many industries that that ripple effect is felt in).
Comments are closed.