Partner Cheryl Burgess authored, “Supreme Changes for ‘Single-Use’ Patent Law,” which was published in Medical Product Outsourcing.
Excerpt: Recent changes to the Patent Exhaustion Doctrine to impact the medical device community.
A patent owner has the right to exclude others from making, using, selling, offering for sale, and importing a patented product. However, an unqualified sale of a patented product terminates the patent owner’s rights under patent law to control the patented article under the doctrine of patent exhaustion (also called the first sale doctrine). Historically, legal precedent permitted lawful restrictions on post-sale use or resale to preserve patent rights. Although a patent owner could not prevent redistribution of his patented product, he could place contractual restrictions on how customers used or distributed the patented product. A patent owner’s patent rights were deemed preserved against uses that violated such contractual restrictions. Additional legal precedent held that foreign sales did not exhaust U.S. patent rights.
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