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Expert Analysis

Exhausted: Courts Reject Restraints On Alienation Of IP

By Jason Russell, Hillary Hamilton and Adam Lloyd ( July 21, 2017, 12:25 PM EDT) -- For centuries, common law has outlawed restraints on the alienation of private property. As Lord Edward Coke wrote nearly 400 years ago, a transaction where a property owner "give[s] or sell[s] his whole interest" in personal property on the condition "that the Donee or Vendee shall not alien[ate] the same" is "voi[d], because his whole interest … is out of him, so as he hath no possibility of a Reverter, and it is against Trade and Traffi[c], and bargaining and contracting betwee[n] man and man" to permit such a restraint on later sales. 1 E. Coke, Institutes of the Laws of England § 360, p. 223 (1628). . . .

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