Kirtsaeng solved this for copyright, but first sale in copyright is different from exhaustion in patents. I'd ordinarily assume the courts would follow the pat

Kirtsaeng solved this for copyright, but first sale in copyright is different from exhaustion in patents. I'd ordinarily assume the courts would follow the path of Kirtsaeng, and find for the refiller. However, if the court's asking for briefs on Kirtsaeng's applicability... that's a worrying question. Kirtsaeng is not binding as a matter of law in this domain, even though it's the better solution. The court wouldn't ask for briefs on applicability if that wasn't potentially decisive. So maybe the Court is prepping to find for Lexmark, and will force SCOTUS to explicitly extend Kirtsaeng-reasoning to patents.