专利权用尽原则的区别适用及实践证成

Differential Application and Practice of the Patent Exhaustion Doctrine

专利权用尽是一项保障专利产品自由流通的重要法律原则。在法院的相关判决中,无论是原被告的抗辩和反驳,还是法院的裁判说理,在专利权用尽原则的适用上都存在着或多或少的误解或模糊之处,主要表现为未能正确区分和理解该原则的适用前提和适用要件。所谓适用前提也就是专利权用尽原则的区别适用,即区分并明确在某些特定情形下是否适用专利权用尽原则。通过构建专利权用尽原则的适用前提,可以避免控辩审三方在本不应适用专利权用尽原则的情形下陷入如何适用该原则的纠结之中,提高判决说服力和裁判效率。综合学说理论和中外司法实践,可以将适用范围、售后限制能否排除专利权用尽原则的适用和区分专利产品的修理与再造确定为专利权用尽原则的适用前提。

Exhaustion of patent rights is an important legal principle to ensure the free circulation of patented products. In the relevant judgments of the court, there are more or less misunderstandings or ambiguities in the application of the principle of exhaustion of patent rights, whether it is the defense and rebuttal of the plaintiff and the defendant, or the judgment reasoning of the court, which is mainly manifested in the failure to correctly distinguish and understand the applicable prerequisites and elements of the principle. The so-called premise of application is the differential application of the principle of the exhaustion of patent rights, that is, to distinguish and clarify whether the principle of exhaustion of patent rights is applicable in some specific circumstances. By constructing the applicable premise of the principle of exhaustion of patent rights, we can avoid the three parties of prosecution, defense and trial falling into the tangle of how to apply the principle when the principle of exhaustion of patent rights should not be applied, and improve the persuasion and efficiency of judgment. Based on the comprehensive theory and the judicial practice at home and abroad, the applicable scope, whether the after-sales restriction can exclude the application of the principle of patent exhaustion and the distinction between the repair and reconstruction of patented products can be determined as the applicable premise of the principle of patent exhaustion.