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System of Patent Exhaustion and Jurisprudential Analysis of the composition

System of Patent Exhaustion and Jurisprudential Analysis of the composition

[Abstract] Patent Law of Patent Exhaustion system is the most controversial issues, even if the TRIPS agreement on this issue has not reached a consensus. The author believes that the complete system should include the Patent Exhaustion of domestic patent exhaustion, the international exhaustion of patent rights (patent products, parallel imports), and the associated aspects of patent exhaustion norms; Patent Exhaustion the value of the system goal is to balance the interests of and efficiency (Kaldor - Hicks standard). Also made in the text of the specific recommendations of perfecting the Patent Law. [Key words] exhaustion of patent rights associated with parallel importation of patent law and economics analysis of legal philosophy is a kind of exclusive patent rights, in a sense, it can be a monopoly. Patentee the right to prohibit unauthorized people from making, using or selling the patented product, the right to sue for unauthorized activities and to claim compensation. This is the most countries and some countries, the treaty rights granted to the patentee. But in any country, the patent gives its holder the exclusive right is always relative and limited, not absolute, infinite. [1] (P265) the limited nature of patent rights include Patent Exhaustion system, unintentional act, first with the right principles, temporary transit, experimental use, use of personal profit. [2] (P146-162) in the process of global economic integration, from the collapse of the ITO to GATT, and then to WTO; from the EEC to the EC, then EU, trade liberalization is not without its main objectives. The principle of trade liberalization and the exclusive franchise called the incompatibility of the Department, its outstanding performance is the limited nature of patent exhaustion in the patent system. We must protect the patent rights, but we have to free trade. In an era of growing economic globalization, we must conduct in-depth study System of Patent Exhaustion. Patent Exhaustion Doctrine in 1873, created after the U.S. court, was gradually accepted by all countries, and evolved into a national patent law generally follow a system. [3] (P125) [2] (P146-162) [4] (P79-80) of 25 August 2000 revision of the , imported by the patentee or permission to manufacture, import the patented product or a product directly obtained the patent after the sale, use, offer for sale or selling the product, not considered patent infringement. This is the so-called In order to prevent the effect of patent rights over a reasonable limit, on the normal economic order adverse effects of the above requirements is necessary. Unrestricted patent is clearly contrary to the fundamental purpose of the patent system. [4] (P77), however, patent exhaustion is a more complex issue, accompanied with them a lot of controversy there are two problems: first, the (internationalexhaustion) problem. Second, the associated problem of patent exhaustion, refers to an independent claim of patent or a patent related to products or generic products manufactured by the patentee or by the permission of the patentee manufactured and sold, The independent claim of patent or whether the exhaustion issue. China's Patent Law article 63, paragraph 1, item 1 just made a very simple requirements, it does not explicitly limit the manufacture and sale referred to whether the conduct must have occurred in China, nor has other patent holders the right to request or Another case of the patent provisions of a reservation, so the literal meaning of the above requirements from the start, it is difficult to determine the answer to both questions should be positive or negative. However, the problem is bound to encounter in reality, can not be avoided. So far, though most countries have recognized the principle of patent exhaustion, this produced a series of precedents, but the system of international exhaustion of patent rights on the basis and scope of the theory there are different point of view. In China, in recent years, there have been intellectual property textbooks come out, but almost without exception, this issue is only a few words; a very small number who introduced the system of Patent Exhaustion and foreign case law, but a thematic study on the issue are very rare; of judicial practice and no relevant case law, but with the economic development, technological advances, and our participation in the process of global economic integration, trade and judicial practice in China will face in the System of Patent Exhaustion deep-seated problems. Because if these, the author conducted a study on the topic. A complete system of Patent Exhaustion the composition (a) the concept of patent exhaustion system established the patent system in some countries. If only the patentee, will he (or his licensee) manufacturing of patented products into the field of commodity circulation, these products, control, that the patentee has an exclusive report on their This is the For example: the buyer bought a patent for a manned vehicle, the seller has no right to prohibit him from using this car laden; the buyer is not prepared to use this car, the seller has no right to prohibit the resale to third parties. [1] (P269) Another example, someone from the store, bought a washing machine to obtain patent protection, he can use this to run a laundry washing machine does not constitute infringement. [5] (P499) that the restrictions imposed on the patent right is reasonable. If there are no such restrictions, the patentee will have unrestricted control of the sale of products, will impede the production and consumption activities of others, this principle in international trade is also important, do not understand this principle, as if their own patent products, the buyer, will be in actual control of the patent holder has not voluntarily be controlled Shihai; if the seller is not legally to control others. [1] (P269) for repair of the patented product should not be considered infringement. U.S. Federal Appeals Court in 1961 if the convertible roof, Inc. v. A decision the company made a negative case to answer. This conclusion should be considered legitimate and reasonable. [2] (P146-162) (b) the issue of parallel importation of patented products parallel imports of patented products are the focus of Patent Exhaustion system problems. The so-called parallel imports, are called gray market imports, is not an authorized importer of a country from the hands of foreign owners of intellectual property and unauthorized importation of goods purchased their own, which previously has been a national intellectual property law. [6] (P357) the issue of parallel importation of patented products or patent issues of international exhaustion is the same patentee for the same invention in different countries to apply for a patent, respectively, when a country in which the patentee sell or permit others to sell their patented product, if a patent without the consent of others to import these products to another country, would constitute patent infringement. [4] (P83), for example, the patent holder to the same product in China and the United States sought and obtained the patent, if the patentee of a factory in the United States to manufacture and sell the patented product, it was without the permission of the patentee After the sale of the patented product will be imported to China, is owned by the patentee constitutes patent infringement in China? In other words, in such cases, the patent in the United States legally sold products, in addition to outside of the United States Patent Exhaustion, in China, whether exhaustion of patent rights? Furthermore, when the patentee is only in China and obtained the patent application, if the patentee in a patent protection for his country did not get the product sold, it was a patent without the permission of imports of products will be sold after to China, would constitute infringement? In both cases there should be some difference whether the conclusion? These issues are all parallel imports of patented products. (C) problems associated with exhaustion of patent exhaustion is associated with a franchise or an independent claim of patent rights associated with proprietary products or generic products manufactured by the patentee or the patentee to manufacture and After the sale, use of the product is no longer constitute an infringement of the patent or the behavior of the independent claims. Sold the patent exhaustion associated products, including but not limited to: (1) on the various uses of the product independent claim or patent; (2) on the use of the product for special tools or special equipment for the various methods of independent claim or patent; (3) to the product on the important part of its independent claim of another product or the patent. The issue is not strictly patent exhaustion, because exhaustion of patent rights is about to be involved in the sale of the product patent, in the case of exhaustion of rights are not violated is the franchise itself, should not be involved in patent people have other independent claim or other patents. However, the sale of patented products will have the same patentee other independent patent claims or other produce what kind of impact, the problem is very similar problems with the patent exhaustion, the nature of things in common, was undoubtedly the patent Exhaustion extension of the problem. Patent exhaustion is not associated with the problem of patent exhaustion theory is incomplete, does not solve the problems associated with the Patent Exhaustion of Patent Exhaustion system is imperfect. Second, the philosophy of law System of Patent Exhaustion of Patent Exhaustion of the system of jurisprudence, including the method of philosophical analysis and law and economics, is a Rational System of Patent Exhaustion inspection. Any legal system should be built on top of some reason, whether that reason is just or unjust, is efficient or inefficient. Patent Exhaustion system must be based on some rational basis, we must use that system of jurisprudence on the scope and methods of analysis. I believe that the economic analysis of the legal system belongs to the legal system of the contents of the philosophy of law, that the legal system of jurisprudence of the content. View of the economic analysis of law is the traditional areas of legal philosophy major new developments in the law have an important role in the study, and the system of Patent Exhaustion plays an important role, this article Economic Analysis of Patent Exhaustion and Parallel Legal Philosophy But this does not deny the economic analysis of law on the philosophy of law, jurisprudence from the property. The Value System of Patent Exhaustion goal is to balance interests in order to achieve justice. The value of the legal system goal is to people about the law is absolutely beyond the point. [7] (P010-013) Absolute System of Patent Exhaustion is the balance of interests beyond the point in order to achieve justice. (A) the principal balance of rights between patent holders and the interests related to distributive justice 1. Patent Exhaustion and justice system, the relationship between law and justice is very close, just the concept of progress can lead to legal innovation, justice is a measure of the legal merits The criteria and standards, concepts of justice and justice can guide the direction toward the law; on the other hand, the law also has an important role for justice, legal allocation of rights to determine the justice, the punishment of sin to justice, compensation for damage to restore justice. [8] (P323-326) System of Patent Exhaustion and related patent rights specifically delineated the rights and obligations between the main distribution of legislators to pursue justice. 2. Patent Exhaustion system and the interests of the classic Marxist writers pointed out: [9] (P82) method has a close relationship with the interest. Creation in France, the understanding of the interests of various social activities is the starting point of the law created; in safeguarding the interests of the ruling class, under the premise to choose between the various interests and coordination is the key to create the law. [10] (P67) to establish and perfect the system of Patent Exhaustion must first recognize that the patent related to this person related products, the respective interests of the owner, and on this basis, coordination, balance and define those interests. 3. Reflects the interest of coordination between the relevant subject of the patent system is based on the establishment of the Western countries there are four representative theories. [11] (P19-22) [12] (P11-15) First, natural rights theory, or basic entitlement. Second, the development of national economy or economic theory. Third, the contract theory. Fourth, the invention or the invention of stimulation of reward. After the three theories mentioned above also includes the patent system, inventors have the coordination of national interests and the role of ideas. China has a view on the patent system are: the provisions of the patent system is invented by people, all between the invention and use of the rights and obligations, balance and coordination of the relations between the legal system, through the balance and harmony between the three to achieve and maintain normal economic order, and to mobilize people to engage in invention activities, and promoting social science and technology and rapid economic development. [13] (P22) The theory is also included with the coordination of the patent system and patent rights related to the role of the main ideological interests. (B) the rights of patent holders and the relevant interests of the principal balance of interests between the law of that right. Rights within a certain range set by the law of freedom. Right is a boundary, any right to have its [13] (P414) system in the Patent Exhaustion, and the patentee is closely related to the subject, including related products, buyers, operators of the patented product, the patent licensee, to grant the patent states, but not limited to . Patent Exhaustion system by setting the value of goal should be closely related to the patent holder and the rights of the subject in order to balance the interests between them. First, the patent system to achieve the patent exhaustion and patent balance between the interests of buyers. Professor Chen Meizhang pointed out that under our patent law system of patent exhaustion, [14] (P221) This For the patentee, the adoption of legal means to sell the patented product or to authorize others to sell their patented product, the patent holder has been out of economic interests over the control of the product, the product is no reason for further control. In addition, the legal disposition of proprietary products sold to control, such as limiting the resale price, use may cause harm to competition. For buyers of the patented product, he purchased a patented product, which won the title, including possession, use, income, rights of action, such as its patented product in the exercise of buying power but also by the patent holder ownership restrictions, apparently against the purchaser's ownership of patented products. Buyers for the product, he aims to get ownership, regardless of proprietary products and generic products are the case, and legal for the buyer to purchase the ownership of the product should be protected should no longer be the original owner effects. For example, someone bought 100 hens, and he could be used to lay eggs, may also be used as a chicken to kill, you can then resell for profit, the seller can not interfere. A purchase of the patented product to the wish and the law gives him the right person with a desire to buy a hen, and rights are not qualitatively different. The patentee has the exclusive rights, patent ownership purchasers of products, both with adjacent community rights, incompatible nature of the right, the patent system on both should be taken into account, which requires exhaustion of patent system to protect the purchasers of patented products ownership. Second, with regard to parallel importation of patented products is the issue of international exhaustion, in addition to patent rights and licensees, patent product relationship between the interests of buyers, but also granted patents and patent rights and consumer countries between the interests. System of Patent Exhaustion from the value target to consider, when the patent holder has exercised reasonably effective control of patented products under the premise of allowing parallel importation of patented products is fair and reasonable and just. If granted the patent holder the right to prohibit parallel imports, although importers can apply for permission to the patentee, but after all, would obstruct free trade. Free trade theory is that the Western countries in the world engaged in the production of a commodity is the existence of comparative advantage and development of international trade based on comparative advantage, comparative advantage and there exists requires States to implement open trade system and free trade policy. In addition, free trade benefits to countries of the consumers, because only in the context of free trade, consumers have a wealth of products to choose from, to be able to buy the country at lower prices produced its comparative advantages to play low-cost, high quality products to low prices. [15] (P582) From the above analysis we can see, only to allow parallel importation of patented products only contribute to the achievement of its patent rights granted to patent holders and consumers the countries and the balance of interests. Third, the patentee sold patented product or generic product under certain conditions, lead to a patent associated with an independent claim or exhaustion of the patent system is to achieve a patent and the sale of products or generic products purchase of the necessary balance of interests between the requirements. In the second revision of the need to draw upon the patent law in Japan, Germany and the United States laws to establish a system of Patent Exhaustion of the association to improve our system of patent exhaustion. Third, the Patent Exhaustion Economic Analysis of the system (a) economic analysis of law in the legal system in the specific economic analysis of law that the use of economic analysis of law, it is the first 60 years of this century, the rise in the United States and then spread to other Western countries bourgeois law schools. Economic analysis of law is an important theoretical basis for the U.S. neo-liberal economics or new institutional economics, it can be said that the U.S. economy in the New institutional economics is transaction costs or transaction costs as the core areas of analysis and demonstration nature of the system, the system there is a reasonable system of necessity and a symbol of the school of economics. Economic Analysis of Law's core idea is: All legal activities and all legal systems, the final analysis, the effective use of natural resources to maximize social wealth for the purpose. Economic Analysis of Law School of the view advocated the use of economics, particularly micro-economic point of view, analysis and evaluation of the legal system and its functions and effects, towards the goal of achieving economic reform the legal system. The fundamental purpose of the patent system, by encouraging invention and creation activities to promote international and domestic scientific and technical information exchange and technology transfer paid to promote national scientific and technological progress and social productivity. [16] (P318) to make the patent system to achieve its objective of improving social productive forces, we must make it a production-effective system. In order to become effective System of Patent Exhaustion the system, we need its economic analysis. (B) the pursuit of the benefits of System of Patent Exhaustion standard Kaldor - Hicks efficiency standard view of Posner is Professor Kaldor - Hicks standard. He said: on. When an economist is talking about free trade, competition, pollution control or some other policy or about the state of the world is efficient, he is the likelihood that Kaldor - Hicks efficiency, which As this book will be talked about as. [17] (P16) recognized national exhaustion of patent rights, international exhaustion and the exhaustion of patent rights associated with, apparently the direct beneficiaries of the relevant patent rights of a person other than the main body, but only so can the patent owner to obtain sustainable and expanding economic interests. Patent Exhaustion system is consistent with Kaldor - Hicks standard-effective system. (C) of the Patent Exhaustion system is the transaction cost theory requires knowledge of the premise of transaction cost, is a generalization of the concept of transactions. According to the interpretation of Commons, the transaction that the interaction between people, [18] (P29, P69) in its the management of transactions and the government limits the individual transactions composed of three transactions. [19] (P73-86), Professor Coase, instead of the market because of this we can get the most with the least cost benefits - maximum benefit. The essence of transaction cost theory to maximize efficiency. [20] (P214), Professor Coase, Economic Analysis of Law home that Coase's law provides a legal system based on effective principles of understanding of a key, but also towards the direction of the largest reform of the legal system effective to provide a theoretical basis. Under the law, whether state intervention in economic operations and law, namely whether the system provides the form of economic operation, depending on the increment value it brings is more than transaction costs. Only system can reduce transaction costs, it is reasonable appearance, another way is: the cost of government intervention, [C] is less than the benefits gained intervention [B], ie [C] is less than [B]. [21] (P216) based on transaction cost theory, the exhaustion of domestic patent system is essential. Purchasers of the patented product and the patent holder to buy the patented product reached on the sale and use of protocols to other expenses, the cost may be high, sometimes even unable to reach agreement, and, if every purchaser of a patented product and the patentee should reach such an agreement, the transaction costs of the large can be imagined. Obviously, the transaction cost theory requires the establishment of national exhaustion of the patent system. Similarly, under certain conditions, the law allows parallel importation of patented products or recognition of the international exhaustion of patent rights and the recognition of associated patent exhaustion, because in this condition, other than the patentee and its international exhaustion of patent rights and associated Patent Exhaustion system transaction costs between the beneficiaries may be high, sometimes even unable to reach agreement. Fourth, improve the system of Patent Exhaustion legal arrangements, such as described in this article, the value of patent exhaustion system objectives: first, by setting the patentee and the closely related subject of the right to balance their interests between Law and justice in order to achieve the value; second, by setting the patentee and the closely related subject of the right to reduce transaction costs in order to achieve the benefits of the value of law (Kaldor - Hicks standard). To play a System of Patent Exhaustion functions and achieve its goal of these values, the system should include the exhaustion of domestic patents, international exhaustion and the exhaustion of patent rights associated with the three aspects. China's current provisions can not be on whether China's current patent law, including international exhaustion of patent rights and patent rights under certain conditions associated with the exhaustion of this issue clearly explained. In today's world of knowledge economy, intellectual property is a knowledge economy Knowledge economy is the rule of law and economy, its core is the knowledge innovation and technology innovation, knowledge, technology and information should be capital, such as the cost of all knowledge can be used without the knowledge capital can not be formed, the knowledge economy will lose its foundation. Therefore, there is no knowledge economy, intellectual property rights. Meanwhile, China is the world towards economic integration, to promote continued economic growth, trade liberalization is an inevitable requirement for the patentee than the interests of legal subjects, perfecting the system of Patent Exhaustion of patent law is necessary in order exclusive rights to the patent owner to restrict the patent law can be able to play the system of values. Perfecting the system of legal arrangements Patent Exhaustion requirements: First, to allow parallel importation of patented products, which recognize the international exhaustion of patent rights; Second, to associate the system of Patent Exhaustion, that is recognized with the patentee's patent rights associated with proprietary products or generic products sold by the patentee or the patentee, sold after the product is associated with the patent exhaustion under certain conditions, the specific reference to Germany and Japan to provide for relevant national regulations. Intellectual Property Law [M]. 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