First Sale and Exhaustion Doctrines in IP Conference, Nov. 5, SCU

By Eric Goldman

I’ve mentioned our First Sale and Exhaustion in IP conference before, but now it’s less than 3 weeks away. If you were thinking about coming, now is a good time to confirm your spot.

As regular readers know, first sale issues are swirling around us. On the copyright front, we are working through a troika of Ninth Circuit cases in Vernor v. Autodesk (now subject to an en banc hearing request), UMG v. Augusto and Blizzard v. MDY. I’ve also blogged about some transborder importation cases involving cheap textbooks (e.g., Pearson v. Liu). On the importation topic, the US Supreme Court granted cert in another Ninth Circuit case, Costco v. Omega, and oral arguments are imminent. [UPDATE: I've been informed the oral arguments will be on Nov. 8, just a few days after the conference!] And many folks continue to lament the absence of a first sale doctrine for digital files.

On the trademark front, we’ve discussed how manufacturers are battling back against unwanted eBay sales (see Mary Kay v. Weber and Beltronics v. Midwest). Simultaneously, manufacturers are embracing minimum resale prices following the Supreme Court opinion in Leegin. We haven’t blogged too much on patent exhaustion, but the recent Quanta v. LGE Supreme Court ruling casts a large shadow over both patent exhaustion as well as other types of exhaustion. Interwoven into all of these topics are questions about whether statutory first sale/exhaustion rights are waivable or conditionable by contract.

As you can see, we have a lot to talk about.

I’m particularly excited about this conference because that we won’t look at IP exhaustion principles in doctrinal “silos.” Instead, we’ve taken an holistic approach to the topic, so that we can see how the exhaustion principles might be similar and different across the various IPs. We hope this will yield some powerful insights that otherwise would be lost in a silo-by-silo analysis.

Our agenda for the day:

8:15 – 8:45 Registration

8:45 – 9:00 Welcome Remarks

9:00 – 10:20 Justifications for the First Sale/Exhaustion Doctrines

Moderator: Lee Ann Lockridge, Louisiana State University Law Center

Vince Chiappetta, Willamette University College of Law

Anne Layne?Farrar, LECG

Rahul Telang, Heinz College, Carnegie Mellon University

Molly Shaffer Van Houweling, UC Berkeley School of Law

10:20 – 10:40 Break

10:40 – 12:00 Channel Management Issues

Moderator: Mark P. McKenna, Notre Dame Law School

Dale D. Achabal, Santa Clara University

Mary Huser, Bingham McCutchen

Ariel Katz, University of Toronto

Catherine Sandoval, Santa Clara University School of Law

12:00 – 1:10 Lunch

12:40 Mark A. Lemley, Stanford Law School

1:20 – 2:40 Transborder and Comparative Issues

Moderator: Colleen Chien, Santa Clara University School of Law

Frederick M. Abbott, Florida State University College of Law

John A. Rothchild, Wayne State University Law School

Irene Calboli, Marquette University Law School

Cynthia Ho, Loyola University Chicago School of Law

2:40 – 3:00 Break

3:00 – 4:20 Copyright Issues

Moderator: Brian Carver, UC Berkeley School of Information

Neel Chatterjee, Orrick, Herrington & Sutcliffe LLP

Raymond T. Nimmer, University of Houston Law Center

Tyler T. Ochoa, Santa Clara University School of Law

Jason Schultz, UC Berkeley School of Law

4:20 – 4:30 Closing Remarks – Eric Goldman, Santa Clara University School of Law

4:30 – 5:30 Reception

Please register at the conference page. Hope you can join us on Nov. 5.