Study On Post-sale Restrictions Of Patent Exhaustion Doctrine

During the sale of a patented product,ownership of the product is transferred,causing a conflict between patentee as original owner and the purchaser.To resolve this contradiction,patent exhaustion doctrine has been put forward.According to this doctrine,once the patented product is legally sold,the patentee and his licensee have no right to interfere with the buyer’s follow-up actions on this product,such as use,sale,promise to sale and import,but they can still retain control of the manufacturing right.This is the result of the balance of interests.However,with the wide application of it,a new problem arises: in order to gain continued control over patented products and gain greater patent benefits,the patentee sets restrictive conditions when selling patented products to exclude the application of this principle.Can such post-sale restrictions control the patented products that have been sold and achieve the effect to exclude the application of patent exhaustion doctrine? This issue is very controversial both at home and abroad.Patent Law of China recognizes and applies patent exhaustion doctrine,but the provision of it is too principled,and there is no solution to the complex problem of post-sale restrictions.There are few domestic scholars to study this problem.With the strengthening of Chinese enterprises’ investment in scientific and technological research and development,the position of technology as an element in market trade has become prominent.Patentee’s awareness of rights will continue to improve,and their desire to control patented products will also become stronger and stronger.The situation of imposing restrictions on the sale of patented products and then carrying out follow-up control of them will also emerge.At this time,how to solve the post-sale restriction in patent law is an unavoidable issue,and it has become the key to balance the interests of patentees with market circulation and the maintenance of public interests.There are four main parts of this paper.The first part puts forward the core issue of this article by sorting out the controversial focus of the Lexmark v.Impression case and analyzes the reasons.The core issue is that the post-sale restriction challenges the natural application of patent exhaustion doctrine.The second is the specific analysis of the application of post-sale restriction under patent exhaustion doctrine.By analyzing the existing two different theoretical foundations of that doctrine,the concept and generation method of post-sale restrictions,and the valid conditions of post-sale restriction clauses that can be established,concluded that the post-sale restrictions have different effects under different patent exhaustion models,and the corresponding legal liability also varies greatly when a counterparty violates this restriction.The third part investigates the attitudes and practices of the United Kingdom,the United States and Germany in dealing with post-sale restriction under this doctrine.Comparing their differences and the reasons behind them to draw inspirations for our country.Finally,this paper combines the latest legal developments in China’s patent field to research and judge China’s position on the issue of post-sale restriction,and further proves that China should adhere to the absolute exhaustion of patent rights in both positive and negative aspects.At the end of the article,corresponding suggestions are put forward for the deficiencies of current relevant laws and regulations.In terms of clarifying the absolute exhaustion of patent rights,perfect the judicial interpretation of "sale" in Article 69 of the Patent Law.Determine contractual liability for breaching of post-sale restriction and specify identification requirements.