Kirtsaeng solved this for copyright, but first sale in copyright is different from exhaustion in patents.<p>I&#x27;d ordinarily assume the courts would follow the path of Kirtsaeng, and find for the refiller.<p>However, if the court&#x27;s asking for briefs on Kirtsaeng&#x27;s applicability... that&#x27;s a worrying question. Kirtsaeng is not binding as a matter of law in this domain, even though it&#x27;s the better solution. The court wouldn&#x27;t ask for briefs on applicability if that wasn&#x27;t potentially decisive. So maybe the Court is prepping to find for Lexmark, and will force SCOTUS to explicitly extend Kirtsaeng-reasoning to patents.