Hyman Rosen wrote: > > Alexander Terekhov wrote: > > The CAFC has a long history of blunders regarding "conditions" and > > erroneously applying tort instead of contract law. > > And have those alleged blunders been overturned on appeal?
Oh yes. In the case of Quanta, the SCOTUS didn't even hesitate to mention that "We note that the authorized nature of the sale to Quanta does not necessarily limit LGEs other contract rights. LGEs complaint does not include a breach-of-contract claim, and we express no opinion on whether contract damages might be available even though exhaustion operates to eliminate patent damages. See Keeler v. Standard Folding Bed Co., 157 U. S. 659, 666 (1895) (Whether a patentee may protect himself and his assignees by special contracts brought home to the purchasers is not a question before us, and upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one under the inherent meaning and effect of the patent laws)." http://www.law.cornell.edu/supct/html/06-937.ZO.html#7 See also http://www.patentlyo.com/patent/2008/06/supreme-court-d.html (from comments) "The usage of the phrase "conditional sale" in the old Supreme Court cases is one of these areas where modern lawyers get tripped up because so much of the old common law context of those cases is no longer familiar. At the time, it meant a sale subject to a condition precedent to the transfer of title, such as an installment sale where title does not shift to the buyer until the last payment. Such structures were used much more commonly before the modern law of secured transactions. So a "conditional sale" did not trigger exhaustion because until the condition was satisfied there was in fact no sale at all (i.e., no transfer of title). The United States's brief in Quanta explains all this. Trying to say that "conditions" post-sale are enforceable if they are "consistent with the patent grant," like the Federal Circuit did in Mallinckrodt, makes no sense. Under traditional law, NO conditions survived an authorized sale, so trying to enforce post-sale conditions is by definition an attempt to expand the statutory grant by contract. Of course private parties can't do that. Mark Patterson's recent article in the William & Mary Law Review explains it all very well." regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
