Varex Imaging Corp. v. Richardson Elecs., Ltd., No. 18 C 6911, Slip Op. (N.D. Ill. Aug. 27, 2018) (Blakey, J.).

Judge Blakey denied defendant Richardson Electronics’ Fed. R. Civ. P. 12(b)(6) motion to dismiss based upon patent exhaustion in this dispute involving x-ray tubes.

Richardson Electronics alleged that plaintiff Varex’s sale of its x-ray tubes exhausted its patent rights, leaving Richardson Electronics free to refurbish them. Richardson Electronics allegedly procures used Varex’s x-ray tubes, opens them removing certain spent components and then rebuilding / refurbishing the x-ray tubes. The Court held that where Richardson Electronics’ actions sit on the spectrum of repair (allowable) or reconstruction (infringing). Because that analysis is heavily factual, it could not be decided at the Rule 12 stage.