JUSTICE SOTOMAYOR: I'm sorry. The Exhaustion Doctrine permits you to use the good that you buy. It never permits you to make another item from that item you bought. So that's what I think Justice Breyer is saying, which is you can use the seed, you can plant it, but what you can't do is use its progeny unless you are licensed to, because its progeny is a new item.
MR. WALTERS: This is obviously a brand-new case where we're dealing with the -- the doctrine of patent exhaustion in the context of self-replicating technologies. So what you have here is if you take the Federal Circuit's view, then you have no -- you have no exhaustion at all for someone to practice the invention. Sure, you can do all the things that you talked about, Mr. Breyer -- or Justice Breyer, but that has nothing to do with the -- or with the invention.
So you're taking the Exhaustion Doctrine for self-replicating inventions, you're modifying this Court's case law substantially, and that's something that ought to be done in Congress. In fact -
JUSTICE GINSBURG: Well, you just said that -- that we haven't had a case involving self-replicating. I mean, the Exhaustion Doctrine was shaped with the idea of an article; there was an article that you could use and then you use it and it's used up. But we haven't applied the Exhaustion Doctrine when you have a new -- when you create a copy of the original.
So it's -- it's not that we have law in place. We've been dealing with an item with the Exhaustion Doctrine and now we have hundreds of items, thousands of items, all growing from that original seed.
MR. WALTERS: The Exhaustion Doctrine, the policy that underlies this Court's cases is fundamentally a choice about the purchaser's rights in that personal property over the patentee's rights in the monopoly to use that monopoly and increase its sales. This Court has always chosen the purchaser's rights over the patentee's rights to increase sales. And we're just asking you to make the same choice here.
JUSTICE KAGAN: Well, except to the extent, as Justice Breyer suggested, except to the extent that the purchase is going to use the article just to create a new one of the exact same kind. And it seems to me that what you're suggesting is that the basic rule that says that the purchaser does not get to do that should have an exception for self-replicating technologies.