Study On The Application Of The Patent Exhaustion Principle In China

The patent technology is created by the inventors who use their wisdom. In orderto respect and encourage their intellectual property, the law of every countryauthorizes inventors some right which is called patent right. If a person or a legalperson possesses patent right, the person has the right to prohibit others from utilizinghis patent technology with purpose of manufacturing and selling except who gets theauthorization.The legislation of patent law is to encourage and protect the patentee’senthusiasm of creativity, and even more important aim is to enhance innovative abilityand science technology. The patent right is one kind of monopoly, and the monopolyis at the expense of the society’s free knowledge utilization. In order to balance theinterests between the patentee and the general public, and promote the utilization andcirculation of the patent technology and patent product, many countries have imposedrestrictions on the patent right. For example, England adopts implied license theory,America adopts first sale exhaustion principle and implied license theory, and Germanadopts Patent Exhaustion Principle but in the judicial practice also adopts impliedlicense theory.China learned the experience of Germany to set up the system of restrictingpatent right, but does not adopt the same system as Germany. China sets up the PatentExhaustion Principle in the Patent Law of China. The Patent Exhaustion Principlelimits the effect of patent right in essence, its theoretical basis are the “impliedlicense” and “patent exhaustion” theories, and China only adopts patent exhaustiontheory. Now, Chinese people pay much more attention to Intellectual Property Rights and meanwhile there are also many new situations appearing in the legal practice,however we can’t find out legal basis to settle “Related patents” Patent Law. At thesame time, we should broaden the sources of the objects applying to PatentExhaustion Principle in China.This article consists of three parts:The first chapter describes the applying status of Patent Exhaustion Principle.This chapter lists detailedly about the concept of Patent Exhaustion Principle,development of legislation, theoretical basis and application condition of PatentExhaustion Principle, and put forward the problems which are found in the applyingof Patent Exhaustion Principle in China.In the second chapter, applying of Patent Exhaustion Principle is analyzed byreference to two cases happened in America, and finally bring out the attitude ofChinese learners about Patent Exhaustion Principle from one case about compulsorylicense suiting for Patent Exhaustion Principle which happened in Europe.The third chapter sums up the author’s suggestion of improving the applicationof Patent Exhaustion Principle in China.