Page:Impression Products, Inc. v. Lexmark Int’l, Inc. Decision.pdf/25

2 Additional Act Modifying the Paris Convention for the Protection of Industrial Property of Mar. 20, 1883, Dec. 14, 1900, Art. I, 32 Stat. 1940 (“Patents applied for in the different contracting States . . . shall be independent of the patents obtained for the same invention in the other States.”). And patent laws vary by country; each country’s laws “may embody different policy judgments about the relative rights of inventors, competitors, and the public in patented inventions.” Microsoft, 550 U. S., at 455 (internal quotation marks omitted).

Because a sale abroad operates independently of the U. S. patent system, it makes little sense to say that such a sale exhausts an inventor’s U. S. patent rights. U. S. patent protection accompanies none of a U. S. patentee’s sales abroad—a competitor could sell the same patented product abroad with no U. S.-patent-law consequence. Accordingly, the foreign sale should not diminish the protections of U. S. law in the United States.

The majority disagrees, in part because this Court decided, in Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519, 525 (2013), that a foreign sale exhausts U. S. copyright protections. Copyright and patent exhaustion, the majority states, “share a strong similarity.” Ante, at 14 (internal quotation marks omitted). I dissented from our decision in Kirtsaeng and adhere to the view that a foreign sale should not exhaust U. S. copyright protections. See 568 U. S., at 557.

But even if I subscribed to Kirtsaeng’s reasoning with respect to copyright, that decision should bear little weightin the patent context. Although there may be a “historical kinship” between patent law and copyright law, Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 439 (1984), the two “are not identical twins,” id, at 439, n. 19. The Patent Act contains no analogue to 17 U. S. C. §109(a), the Copyright Act first-sale provision analyzed in Kirtsaeng. See ante, at 13–14. More im-