Update: sorry..........a part of this explanation was cut off at the very end.
‘‘Patent exhaustion’’ is a misnomer. To think clearly about
this fact, one must consider two things: (1) the meaning of
‘‘exhaustion’’; and (2) the nature of the patent right. ‘‘Exhaustion’’
means the state of having been drained or used up
completely. It assumes there was something there to begin
with that could be used up. The patent right, as recognized
by the Supreme Court in
Bloomer v. McQuewan, 55 U.S. (14
How.) 539 (1852), and as more recently defined in 35 U.S.C.
§ 154, is the right to exclude others from making, using,