IP exhaustion has been
heavily litigated in recent years, including twice in the past five years
before the Supreme Court: Kirtsaeng in 2012 and Lexmark in 2017. The goal of
this panel is to explore the open questions, challenges, and opportunities
following those decisions. The decisions established an international
exhaustion regime in both copyright law and patent law but related questions
were left open, especially concerning the ability of IP rights-holders to
establish and enforce post-sale restrictions. Such open questions include, for
example, what restrictions can be imposed by establishing licensing or lending
arrangements instead of sales, and how courts should distinguish those
transactions? To what degree other legal tools, such as contracts law or
private property law, be used to establish post-sale restrictions? Can
trademark law restrict grey-market importation, now that copyright and patent
law cannot? How, if at all, should exhaustion be applied in the digital space?
A virtual business meeting was held prior to the Annual Meeting.