Patent and Copyright Exhaustion in England circa 1800

Abstract

In this Article, I examine and reject the claim, made by the United States Supreme Court, that the first-sale doctrine is a “common-law doctrine with an impeccable historic pedigree” that reaches as far back as the 17th century and that “makes no geographical distinctions.” The Supreme Court’s depiction of the common law formed an important basis for the Court’s recent copyright decision in Kirtsaeng v. John Wiley & Sons, Inc. (2013), and is likely to reappear and influence the Court in a patent case in which it has recently granted certiorari, Impression Products, Inc. v. Lexmark Int’l, Inc. At issue in Lexmark is whether gray-market goods embodying patented inventions can be imported or sold in the United States without the permission of the U.S. patent holder. Focusing on the state of English law during the long eighteenth century—that is to say, in the years before and just after Congress enacted the first copyright and patent statutes in 1790—this Article demonstrates that although a domestic first-sale (or exhaustion) principle was evident in litigation in English courts, the common law did not recognize international exhaustion. On the contrary, the common law observed foreign legal boundaries and permitted right owners and their licensees to stop gray-market goods that embodied intangible rights.