Brief of Amicus Curiae Knowledge Ecology International, in Support of Petitioners' Petition for Writ of Certiorari (Ninestar Technology Co., Ltd, et. al. v. Int'l. Trade Comm'n, et. al.)

Abstract

The patent exhaustion doctrine is a common law tradition that has existed in the United States for over 150 years. This doctrine, analogous to the statutorily codified “first sale” doctrine of Copyright Law, limits the patent owner’s control to the first sale of the technology. Once the first authorized sale occurs, the patent owner’s right to the invention are considered exhausted. This Court’s precedent has long found that the first authorized sale, regardless of the place of manufacture or location of sale, exhausts the patent owner’s rights to control future downstream sales. The Federal Circuit’s recent decisions run contrary to this Court’s longstanding history. As a general rule, KEI favors international patent exhaustion, a rule that stood in the United States until the Federal Circuit’s decision in 2001. Where desirable public policy favors limitations on international exhaustion, Congress is capable of providing such limitations through other laws or regulatory processes.