Current and former Juelsgaard Intellectual Property and Innovation Clinic students attended oral arguments before the Supreme Court in Washington, D.C. last month in a case in which they had submitted a total of three amicus curiae briefs. Katherine McNutt, ’17, and a 2016 Clinic alum who is currently clerking for the Federal Circuit, along with Clinic director Phil Malone, observed arguments in Impression Products, Inc. v. Lexmark International, Inc., an appeal that addresses a longstanding doctrine known as “patent exhaustion.”
McNutt and Clinic student Michael Hoosier, ’18, submitted an amicus curiae brief to the Supreme Court in the case in February on behalf of SLS Professor Mark Lemley and 29 other intellectual property professors and the American Antitrust Institute. The brief asked the Court to ensure that once a patent owner authorizes the sale of a patented item, the purchaser may freely use, resell, recycle, or otherwise dispose of that item without fear of patent infringement liability. After an authorized first sale of a patented item anywhere in the world, a patent owner can no longer use patent law to try to control what is done with the item.
This brief was the third submitted in this case by Juelsgaard students. Last spring, McNutt and another student drafted a law professors’ amicus brief urging the Supreme Court to review the Federal Circuit’s decision. Previous students drafted an earlier amicus brief when the case was still before the Federal Circuit asking it to limit post-sale restrictions and to acknowledge international patent exhaustion.