Parallel Import Of Patented Products From The Perspective Of International Trade

World under open environment,various countries trade is frequent,international trade fast development,the problem of parallel imports over the years become a hot research topic in many areas,parallel import is a collection of various factors such as economy,trade,law in a complex problem,parallel import question whether reasonable and lawful has been not yet been determined.Parallel import of patented products is one of the important parts of parallel import of intellectual property rights.With people’s attention to patent protection measures,the problems have been paid attention to.TRIPs agreement to intellectual property rights associated with the world trade,built a global intellectual property dispute processing mechanism,which brings us the protection of intellectual property rights,breaking the law regulating range,it is because of the intellectual property rights beyond the boundaries between countries,the problem of parallel imports will become very prominent.In the context of international trade,this issue is not only related to the vital interests of the patentee,but also closely related to the rights and interests of consumers,consumer experience,national economic development,scientific and technological innovation and foreign trade.Therefore,it is of great theoretical and practical significance to perfect the legal system of parallel import of patented products in China.There are three main innovations.First,the material is new.This paper cites new cases.In the second part,it cites the case of Calidad Pty Ltd v.Seiko Epson Corporation in Australia,which lasted from 2017 to 2020.Until November 2020,the High Court of Australia gave its judgment opinion.In this case,the trial court and the collegial panel applied the implied license theory and reached the conclusion of infringement,while the high court applied the exhaustion of rights theory and reached the conclusion of non-infringement.By comparing the case of Priebe＆Sons v.Hunt in the United States,the same conclusion is reached by applying the implied license and the exhaustion of right,and the similarities and differences between the two theories of parallel import are summarized.Second,the perspective is new.Based on the automobile industry,pharmaceutical industry and the current patent development in China,this paperanalyzes the social effects of the legal regulation on parallel import of patented products in China.Since the core engine technology of the automobile industry is still in the hands of foreigners,Chinese automobile enterprises need to import related products from abroad or obtain corresponding licenses.Taking the theory of exhaustion of rights to liberalize parallel import is conducive to reducing product pricing or license fees,so as to achieve the purpose of reducing enterprise costs.Pharmaceuticals related to the national health life,compared with other industries,more particular,although improve accessibility is advantageous to the national medicine in endanger public health incident faster and more low-cost access to drugs,but public security events are not always occur,the safety of the drug should be noticed,so in the pharmaceutical industry is more suitable for take the implied license theory.At the same time,the number of patent applications in China has been rising,and the interests of the patentee in China have also been paid attention to by the public.Comprehensive consideration of various factors,based on the current situation of China’s development,give more appropriate solutions.Third,new ideas.The fourth chapter of this paper is not limited to the adoption of only one theory,but put forward the suggestion of two theories parallel.Neither exhaustion of right nor implied license is the theory of prohibiting parallel import.The biggest difference between the two lies in the different degree of protection of the patentee’s rights.At the same time,the application should also make a distinction:when the patentee limits the right,the principle is to take the implied license,on the contrary,to take the exhaustion of the right.The content of this paper is divided into four parts in structure.The first part is an overview of parallel import of patented products,mainly elaborating the concept and causes of parallel import.The second part is the application of the two theoretical bases of parallel import of patented products,which is analyzed by combining the cases of Priebe＆Sons v.Hunt and Calidad Pty Ltd.V.Seiko Epson Corporation.Priebe＆Sons v.Hunt respectively applied the exhaustion of rights theory and the implied license theory and got the same judgment,while Calidad Pty Ltd v.Seiko Epson Corporation respectively applied the exhaustion of rights theory and the implied license theory and got different conclusions.Analyze the difference and connection between the two theories.The third part is the legislative status quo and social impact of parallel import of patent products in China.In combination with parallel import of cars,parallel import of drugs and current patent development in China,the social impact of current legal regulation of parallel import of patent in China is discussed.The fourth part of the content of China’s patent product parallel import system to improve the suggestions,standing in the perspective of international trade and based on the overall national interests,it is suggested to clarify the applicable conditions while leaving room for flexibility,in order to face the future parallel import may produce changes.Under the current international trade background,the specific situation of parallel import is complex and varied,so it is difficult to properly deal with all the cases only by applying the exhaustion of rights theory or the implied license theory.At the same time,there is a problem in China that the application boundary between the exhaustion of rights theory and the implied license theory is not clear.Therefore,the adoption of both the implied licensing theory and the exhaustion of rights theory can better cope with a wide variety of parallel imports.At the same time,relevant judicial interpretations should also be issued to list the specific circumstances of the application of the exhaustion of rights theory and the implied licensing theory,so as to draw a clear line between the application of the two theories and make specific analysis of specific problems.