Choice Of Application Model For The Principle Of Exhaustion Of Patent Rights

The principle of exhaustion of patent right,also known as the principle of first sale,means that after the first sale of the patented product by the patentee or the authorized person,the patentee loses control over the subsequent disposal of the product and cannot claim the right to the patented product again,and the purchaser can freely use the patented product he/she purchased.The purpose of this law is to restrict the ability of the patentee to impose restrictions on the patented products after they are sold,which is of great significance to ensure the free circulation of the patented products in the market.The principle of exhaustion of patent right is a controversial issue,which is embodied in the contradiction between the protection of patent right and the common law principle of free circulation of goods.Therefore,countries have not reached a unified opinion on the application of the principle.According to Article 6 of TRIPS Agreement,each country is free to prescribe its own system of exhaustion of rights on the condition that other provisions of TRIPS Agreement are not violated when settling disputes concerning intellectual property rights.There is no clear regulation on the application mode of patent exhaustion principle in Chinese law,and the academic circle is not in agreement on the application mode of patent exhaustion principle,and there are also great disputes in judicial practice in various regional courts.Therefore,this paper tries to draw lessons from the economic research results of vertical restrictions in the anti-monopoly law,and analyze which theoretical model should be applied to the principle of patent exhaustion to give full play to its positive effect from the perspective of promoting economic and social development,stimulating innovation and maximizing the overall social benefits.By drawing on the experience of the reform of the Anti-Monopoly Law,we will explore the issue of exhaustion of patent rights and propose countermeasures.Vertical restriction is a very complex and changeable field in the economic law.In order to promote and protect competition,the anti-monopoly law has always adopted the principle of illegal vertical restriction itself.With the continuous research of economists,it is found that vertical restrictions have both promoting competition and anti-competition effects.Therefore,it is necessary to measure the net effect of vertical restrictions on individual cases and build economic models to measure its net effect.Only when its net effect is shown as harming competition and restricting innovation,can we decide to carry out restrictions.The identification of the legitimacy of vertical restrictions has shifted from the initial stage of formal evaluation to the stage of effect evaluation,and the regulation principle has also shifted to the application of reasonable principle.In modern distribution system,vertical restriction plays an important role in patent market.Vertical restrictions include resale price maintenance,tie-in,exclusive transactions,vertical geographic restrictions,and often involve intellectual property,as they are mostly set for specific brands and technologies.The after-sale restriction of patented products occurs between the patentee and the buyer,while the vertical restriction in anti-monopoly law occurs between the upstream manufacturer and the downstream buyer.Although they belong to different legal fields,they are essentially the same,and the after-sale restriction actually belongs to the vertical restriction.At the same time,both of them aim to promote innovation incentive.Therefore,it is reasonable for us to suspect that the after-sale restriction of patented products has anti-competitive effect similar to vertical restriction and try to restrict it.However,the competition damage after economic measurement does not necessarily exist in every case,or even in most cases.The principle of reasonableness is a principle that has arisen and mastered in the practice of law enforcement,and should be more applicable to practice in theory.Therefore,the after-sale restriction of patented products should not be strictly prohibited,but should also apply the principle of reasonableness to prove the damage effect.In addition,there are other beneficial effects that may improve the overall welfare of the society compared with the exhaustion mode of patent rights.The one-size-fits-all absolute exhaustion mode is not conducive to promoting innovation,and does not conform to the law of economic and social development.In order to better promote innovation,enhance the overall welfare society,we should first clear applicable patent on law level relatively use mode,allowing additional after-sales constraints to a patented product disposition,to limit after after-sale restrictions in the form of a requirements at the same time,the constraints should be clear and as buyers know,meet on the provisions of the contract in the civil law,It shall not violate the anti-monopoly law or cause the abuse of patent right.