Research On The Effect Of Post-sale Restrictions On The Doctrine Of Patent Exhaustion

The post-sale restrictions of patent exhaustion refer to the restrictive conditions set by a patentee at the time of the sale of the patented product embodying patented invention,and an attempt by a patentee to continue control of a sold patented product by excluding the application of the patent exhaustion.According to the patent exhaustion,if the patented product is legally sold for the first time,the patent right of the patented product will be exhausted.On the other hand,the patentee may also restrict the content and scope of the patent use,which is permitted in principle of freedom of contract,but this could conflict with patent exhaustion,which seeks to protect the free forward circulation of patented products.In the event of a sales contract breach between the parties to the contract,it is an issue whether the act is regarded as a patent infringement that extends beyond the permitted use of the Patent Law,or whether it is regarded as a breach between the parties to the contract without patent infringement.In a U.S.Supreme Court ruling in the Lexmark case in 2017,the Supreme Court interpreted that patent right is exhausted even if there are post-sale restrictions.The ruling is a different judgment from the longstanding position of the U.S.Supreme Court.As such,this issue is a complex because it requires comprehensive consideration of the purpose of patent right,the protection of the private interest of the patentee and the protection of the public interest in society.In addition,in order to reach a conclusion on this issue,it is necessary to consider both aspects of the application and interpretation of the law,as well as aspects of social policy that reflect China’s industrial development and the degree of protection of patentee in China.Considering the "Fourth Amendment Draft of the Chinese Patent Act" aimed at protecting patentee,the development of Chinese industries,growth of Chinese companies,and improvement of Chinese patent levels,in principle,the author believes that the protection of patentee is primarily necessary according to the presumptive exhaustion theory,and in exceptional cases,it is desirable to follow the absolute exhaustion theory if necessary for social public interest purposes,taking into account the situation comprehensively at the time of ruling.However,in order to further improve this,this paper proposes to clarify the presumptive exhaustion theory and the exception by means of legislation.In addition,this paper also proposes to establish a strategy for enterprises to proceed with the preparation of the draft of contract,patent application and patent monetization in consideration of this issue.