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"While the legal community continues to ponder the implications of the US Supreme Court’s recent Kirtsaeng ruling on copyright and first sale doctrine (on which see previous Katposts here, here and here), the Supreme Court has ensured that the Kirtsaeng ruling is limited to copyright, at least for now. The Court was asked to review Ninestar Technology Co. v United States International Trade Commission, to determine whether the first sale doctrine would apply to products protected by patents similarly to the way in which Kirtsaeng applied it to copyright products.
The first sale doctrine as it applies to copyrights is codified in US copyright laws. By contrast, the first sale doctrine as it applies to patents has been developed only through common law, which currently defines the “first sale” as applying only to sales made inside the US. Accordingly, a sale outside the US is not considered a first sale that would extinguish the patent owner’s right to control further sale through importation into the US.
By denying certiorari in Ninestar on 25 March the Court leaves the current common law position intact. If the Court had chosen to review Ninestar and issue an opinion on the merits, it would have had the opportunity to rule that the first sale doctrine applies even to first sales taking place overseas – a ruling that would have a huge impact on the pharmaceutical industry. The consequence is that big pharma may continue pricing drug products by geographical region, and Americans remain prohibited from seeking cheaper prescription alternatives from foreign countries (though many people do illegally import drugs from abroad, especially from Canada)".The history of Ninestar can be found on the SCOTUSblog here.