Research Of Patented Product's Repair And Reconstruction Legal Problems

Along with the progress of the patent system, the society pay more and more attention to intellectual property, issues involved in intellectual property become more complicated, patent infringement is one of the category. In the western developed countries, patent infringement caused by the patented product's"repair"and"reconstruction"is very common, while in our country, this is edge problem. Although scholars proposed it early, typical case about it hasn't appared in judicial practice so far, and there are little discussions about it on theory, the provisions of its legislation are also very rough. But with the development of science and technology and the expansion on repair and reconstruction industries,this problem will appear in the judicial practice in China.So this thesis researched on patented product's"repair"and"reconstruction",hope to have a certain reference value in clarify this problem on theory and practice.This thesis uses the case analysis, comparative analysis and theoretical analysis to research, main includes four chapters: Chapter one is the definition on patent product's"repair"and"reconstruction", This chapter introduced the origin of the controversy of patented product's"repair"and"reconstruction",and briefly introduced the concept and characteristic of both,meanwhile,introduced the theoretical basis for distinguishing between the two——patent exhausted principle and implied license theory.Chapter two starting with the related cases from the United States and analysised it, obtained the considerations and the distinguish standard of United States in dealing with patented product's"repair"and"reconstruction". Mainly includes: scrap degree of patented products, the degree of difficulty to parts replacement, the value of the replacement parts in the product's entire value, the life of the replacement parts in the product's entire life.Charpter three summarized the factors to be considered when distinguish between patent product's"repair"and"reconstruction". Mainly to differentiate from two angles: first, distinguish from the constitutions; they are different in behavior object, behavior content and behavior purpose. Second,distinguish from the perspective of judicial practice,main consider the following factors:records range of the manual and claims,the life of the replaced parts in the product's entire life,the value of the replaced parts in the product's entire value, degree of scraption,the difficuty to parts replacement, product's attributes and consumer's habits.Charpter four evaluated the legal rules of patented products'"repair"and"reconstruction"in our country, pointed out the inadequacies in it and gave certain suggestions to modification. This thesis based on the existing legislation in China, through reference foreign experience in theory and judicial practice, made some objective and in-depth analysis in patented product's"repair"and"reconstruction". This thesis emphasizes that we must pay attention to the distinguish between patent product's"repair"and"reconstruction", and suggested that we shoud modify correlative legislation, set certain legal principle, prepared theory preparation for future judicial practice.