International Patent Exhaustion

The Supreme Court has denied NineStar’s petition for writ of certiorari in its bid to change the law of international patent exhaustion. The non-decision leaves simmering the apparent conflict between the Federal Circuit’s recent patent decisions (rejecting international exhaustion of patent rights) and the Supreme Court’s recent copyright decision in Kirtsaeng (finding international exhaustion of copyrights). 

Although the Federal Circuit’s own internal rule requires an en banc hearing to overturn its own precedent. That rule can be set aside when, as here, the Supreme Court calls-to-question prior precedent.  It appears that NineStar’s appeals have been exhausted, but the next-up challenger will have a good shot (depending upon the panel assigned).