In the much awaited opinion in Lexmark, the en banc Federal Circuit (10-2) cited the TRIPS provision on exhaustion (article 6) and even the TPP. A step forward for international IP aficionados. Arguably, the statement accompanying the Uruguay Round implementing legislation that “[t]he [TRIPS] Agreement . . . does not affect U.S. law or practice relating to parallel importation of products protected by intellectual property rights” is a significant part of the majority’s argument finding that non exhaustion of patent rights by a foreign sale (despite Quanta) is supported by legislative intent. I detect a whiff of cert. in the air.
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