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Common Law Conformity and the Commercial Law of Intellectual Property John F. Duffy and Richard Hynes* The modern law of intellectual property includes not only rules governing the existence and extent of rights—e.g., rules about what constitutes a valid patent, copyright or trademark and what acts infringe such rights—but also doctrines regulating commerce in intellectual property and in goods embodying intellectual property rights. The most famous of these commercial doctrines is intellectual property’s “first sale” or “exhaustion” doctrine, which holds that the first authorized sale of a particular good (e.g., a copyrighted book or a patented machine) exhausts the intellectual property rights in that particular good, thus leaving the purchaser free to use and to resell the good without being subject to infringement claims. 1 The commercial law of intellectual property is, however, much broader than exhaustion doctrine. It extends generally to the rules governing the licensing, sales...