Question remains open as court says "no" to Ninestar

 A Google search for “Prescription
drugs from Canada” returned
more than 35 million results

Exhaustion of rights and first sale doctrine continue to fascinate the real world in which businesses buy goods in one country in the hope of selling them profitably in another.  Astonishingly, since the possible permutations of fact that require a yes/no ruling are quite finite (and therefore fit for legislation) and first sale has been litigated so frequently in the US and Europe over the years, we still don't have a full set of answers. Meanwhile, the latest news from the US is brought to readers of this weblog by katfriend Miri Frankel (Associate Legal Counsel, Aegis Media Americas), who writes:

"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.