| Hi, I'm the author of this talk. A couple quick notes: First, the source materials I relied on are available at <https://github.com/google/opencasebook/blob/master/patents.m.... If you are interested, please read them. Second, about Bowman v. Monsanto. The logic of Bowman is a pretty serious challenge to what I presented above. It might invalidate certain parts of my argument. Specifically, the question is whether it is even theoretically possible to exhaust the exclusive right to "make" a patented item. I haven't yet been able to go back and do further research. But what I would be looking for is a case where someone sold an item - like a software application - with a license that says, "make as many copies as you want for internal use." If the buyer then transferred the software, would the new buyer get the right to make copies? I'm not sure. But if so, that would be evidence that a sale could exhaust the right to make. Third, I thought this was a fun rabbit hole - and, as I said in my talk, a "surprising" result. The surprising bit is important. It is entirely possible - and even likely - that a court could agree with all the precedents I cited, and "distinguish" them to come to a contrary, non-surprising result. In short, I think exhaustion is more important than people may be considering, but don't take this analysis to the bank. |
Unbroken: https://github.com/google/opencasebook/blob/master/patents.m...