Re: More FSF hypocrisy

[Alexander Terekhov]

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 LGE’s other contract rights. LGE’s 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. 

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