Re: a dumb question about patents and copyrights

On Mon, 01 Nov 1999, David Post <postd[_at_]erols.com> wrote:
>
> Here's my question -- it should have occurred to me long ago, but
> didn't -- and may be very simple & stupid...
>
> generally speaking, ownership of a material object subject to IP
> rights, and ownership of the IP rights themselves, are entirely
> distinct; this principle is embodied in section 202 of the Copyright
> Act, but I *think* is a general feature of the law in this area.
> Now, this leads to certain anomalies -- the owner of a painting, for
> example, cannot display the painting in public. Sometimes there are
> special exceptions written into the statutes to cure the anomalies
> (e.g., sec 109(c) for the painting problem). Without sec. 109(c),
> I'd be infringing if I hung the painting in a public place.
>
> My question is this. The holder of patent rights has the exclusive
> right to 'make use or sell' the patented invention. I have, as we
> all do, a zillion patented items in my possession which I 'use' all
> the time -- [this came up in my class with respect to a keychain I
> own, which appears to have a patented locking device in it]. So --
> why am I not infringing the patent when I do so? Is there some
> statutory exception, or some principle of patent law, that I'm
> overlooking?

Is this not the doctrine of "first sale, exhaustion, repair and reconstruction"? i.e. the first authorized sale of an object protected by a patent "exhausts" the patent owner's rights of use, repair and resale. Sometimes called an "implied license".

See Keeler v. Standard Folding-Bed Co., 157 U.S. 659 (1895)

I believe that this doctrine is generally one of common law and not statute in Anglo-American jurisdictions, at least. I would agree that copyright laws tend more to spell out in statutes the rights of users -- except of course your U.S. system of fair use which is more open ended.

An interesting English twist on this in copyright law is the user's right to repair a rusty tail pipe by buying one from an unlicensed competitor -- see British Leyland v. Armstrong Patent [1986] A.C. 577.  

There is, of course, a strong movement in copyright law to impose a "use" or "utilization" right - i.e. in the Internet and database contexts.

-- 
Howard Knopf
Counsel, 
Shapiro, Cohen
Ottawa,  Canada
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