Study On The Distinction Between Repair And Reconstruction Of Patented Products

China has now entered the new development stage of the 14 th Five-Year Plan,in which the development of circular economy has become one of the major strategies.The recycling of patented products is an important part of the resource recycling network,and the recycling of used patented products involves the interests of multiple parties,such as the patentee,consumers and the repair industry.The repair of a patented product is the proper meaning of the principle of exhaustion of patent rights,but when it exceeds a certain limit to the extent of reconstruction the patented product,it may infringe the manufacturing right of the patentee.This article discusses how to distinguish between legally permissible repair and illegal reconstruction of patented products,with a view to providing some reference value for China’s judicial practice and the growing recycling industry.Chapter one focuses on the issue of patent infringement arising from the distinction between repair and reconstruction of patented products.Since the distinction between repair and reconstruction directly determines whether patent infringement is constituted or not,it is particularly crucial to draw the line between repair and reconstruction.Through analyzing three foreign cases of recycled printer cartridges,we analyze what considerations and criteria are adopted by different countries in distinguishing between repair and reconstruction of patented products.Finally,it is concluded that the main difficulty in distinguishing is that the act of reconstruction is difficult to identify,and the specific factors in dispute are: the importance of the replaced parts,the restrictions of the patentee,and the modification of the product.Chapter two analyzes the necessary elements of the act of reconstruction.Three conditions should be met for the determination of the act of reconstruction: the patented product has been scrapped,a physical act has been performed,and the patented product has been substantially manufactured.The infringement principle of patent law is used to specifically analyze the constituent elements of the act of reconstruction,which shows that even if the key part of the patented product needs to be replaced,it does not mean that the patented product has been scrapped.In addition,China’s patent law has long abandoned the concept of "essential technical features" in the early years,and the key part of the part itself is not in line with the context of China’s patent law.Analyzing the situation of "new wine in old bottles" cases in China,we pointed out that both repair and reconstruction are physical changes to the patented product.Finally,in the comprehensive evaluation of substantially manufactured patented products,it is necessary to base on the reality that China is a large country in the recycling industry,and to be oriented to protect the environment and prohibit the abuse of patent rights.Chapter three mainly discusses the principle of exhaustion of patent rights,the theoretical basis applied in the determination of repair and reconstruction.The principle of exhaustion of patent rights is the basis for the exemption of repair acts,which is in line with the legislative purpose of China’s patent law and the realistic demand of China’s development of recycling industry,and is reasonable as a guiding principle for distinguishing repair and reconstruction acts of patented products.When the restrictive conditions imposed by the patentee conflict with the principle of exhaustion of patent rights,this article considers that the restrictive conditions are not legally binding.Since the essence of the exhaustion of patent rights is not an implied license,the patentee cannot restrict the application of the exhaustion of rights by attaching restrictive conditions.This chapter also adds the new decisions that have emerged in Australia in the past two years,and through the study of the new cases,the international mainstream view of the scope of application of the exhaustion of rights doctrine is also in line with the reality in China.Chapter four aims at the current situation in China regarding the distinction between repair and reconstruction of patented products.By analyzing the relevant legislative attempts in China and the first case of patent product transformation,some of the shining points and shortcomings are put forward.It is feasible for China to instructively enumerate the act of reconstruction in judicial interpretation,but the principle of comprehensive coverage should be correctly grasped in the case of transforming a patented product.This chapter proposes the following distinguishing steps: compare the claims;analyze the wear and tear of the parts;compare the life of the parts with the life of the overall product;and conduct a patent substantive examination if the product modification is involved.The above differentiation steps can strip out the obvious acts of reconstruction and provide suggestions for judges’ discretion in the absence of explicit legal guidance.