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103 Va. L. Rev. Online 1 (2017)

handle is hein.journals/inbrf103 and id is 1 raw text is: VIRGINIA LAW REVIEw ASSOCIATION VIRGINIA LAW REVIEW ONLINE VOLUME 103 APRIL 2017 1-17 ESSAY COMMON LAW VS. STATUTORY BASES OF PATENT EXHAUSTION John F. Duffy and Richard M. Hynes* The pending Supreme Court case Lexmark v. Impression Products re- veals the full breadth of disagreement about the exhaustion doctrine in patent law. In practical terms, the doctrine could mean almost every- thing-a mandatory rule applicable to all domestic and international sales of patented goods or almost nothing an optional rule appli- cable only to domestic sales that patentees can easily avoid by con- tract. This essay shows that this breadth of disagreement arises from a more fundamental disagreement over the legal basis for the doctrine, with judges, lawyers and academics deeply divided over whether the doctrine is based on judicially fabricated common law or a specific statute. The essay reiterates and further clarifies our position, first advanced in our prior article, that the doctrine is based on statutory interpretation and is designed to avoid broad constructions of intellec- tual property rights that would interfere with the vast and complex body of common law rules and statutory provisions governing com- mercial transactions. The essay also replies to two prior responses to our original article and concludes with a modest hope for what we think is a first necessary step toward clarity in this area: we hope that John F. Duffy is the Samuel H. McCoy II Professor of Law and the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia School of Law. Richard M. Hynes is the John Allan Love Professor of Law at the University of Virginia School of Law. @ 2017. 1

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