专利权用尽的售后限制研究 - 中国民商法律网.pdf

Abstract: The exhaustion of patent right is an important limitation to the exclusive right of the patent right. The mainly dispute of legal effect of after-sales restriction of exhaustion of patent right is whether restrictive conditions attached to the sale of patented products can impede exhaustion of the patent right. Accordingly, there are two kinds of different modes: absolute exhaustion and relative exhaustion of patent right. Drawn on the title retention system in the contract law, we can establish the rules of patent right retention under the framework of patent exhaustion. Based on the theory of after-sales restriction of the exhaustion of the patent right, the inherent limitation theory excludes the rule of patent right retention, while the implied license include this rule, which is more in conformity with party autonomy. According to the different forms and contents of the restrictions, the after-sales restriction of exhaustion of patent right and the retention of the patent right has different performance. In order to strengthen the protection of the patent owner, the effect of after-sales restriction of exhaustion of patent right should be admitted in the patent law, and violation of the restrictions will constitute concurrence of liability for patent infringement and iability for breach of contract. Key Words: exhaustion of patent right; after-sales restriction; reservation of