Today in Lexmark International, Inc. v. Impression Products, Inc., __ F.3d __ (Fed. Cir. 2016)(en banc)(Taranto, J.), an en banc majority maintained the court’s prior holdings in (a)Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992)(upholding restrictions to deny exhaustion), cf. Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008); and (b) Jazz Photo Corp. v. International Trade Commission, 264 F.3d 1094 (Fed. Cir. 2001)(denying international patent exhaustion), cf. Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1361 (2013)(establishing international copyright exhaustion).
On the road to the Supreme Court: Coupled with a cogent dissent, Lexmark, __ F.3d at __ (Dyk, J., joined by Hughes, J., dissenting), the divergence between the appellate body and the Supreme Court is remarkable and paves the way for a grant of certiorari.
Unless the period for filing the petition is extended, a decision whether to grant certiorari may be reached before the end of the current Term, which would set the stage for a merits argument late this year and a decision before the end of June 2017.
Regards,
Hal