Agoracom

"The License Agreement authorized Intel to sell products that practiced the LGE Patents. No conditions limited Intel's authority to sell products substantially embodying the patents. Because Intel was authorized to sell its products to Quanta, the doctrine of patent exhaustion prevents LGE from further asserting its patent rights with respect to the patents substantially embodied by those products.⁷

⁷ 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"). "

So the question for us to answer is how the licenses were drafted. Did TPL/PTSC do the same thing as LG to include "Nothing in the License Agreement limited Intel's ability to sell its products practicing the MMP Patents". If so, we are doomed. If not, as shown by some licensees to post warning on their website to their down stream customers, asking them to contact PTSC/TPL to get a MMP license. Someone may still have those links about this.

The AMD/PTSC license posted by you today has this language regarding the sublicense -

"LICENSEE may sublicense the rights set forth herein only to 

third parties (e.g., foundry, distributor, design consultants, 

benchmark agencies, etc.) that assist LICENSEE in 

exercising any of it's licensed rights set forth herein. "

This was to prohibit AMD from sublicense the rights of IGNITE technology to their down stream customers or end users who are not foundry, distributor, design consultants, benchmark agencies, etc.

Please note that AMD license was signed in February 2005. Licenses signed thereafter should have stronger language regarding sublicense to deal with first sale doctring/patent exhuastion issue.

The Supreme court is endorsing Keeler v. Standard Folding Bed Co., ruling by including the following in the foot note -

"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"). "

As long as we have special contracts regarding sublicenses, "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".

Let's dig out any information we can find regarding what was in the licenses (most are under NDA, but some had surfaced before by licensees. It may turn out that all (of this ruling) are anticipated by our lawyers and the impact won't be as bad as shown by today's market.

GLTAL