A Research Of Legal Issues On Repair And Reconstruction Of Patented Products

In the United States and Japan, the repair and reconstruction of patented products was not a new matter, but in our country it is still a relatively new area about which no enough researches were published. On this issue, the United States and Japan have a large number of cases; their laws are also more complete. While in China, there were only two cases about repair and reconstruction of patented products, i.e. wine bottle cases in Shandong and Heilongjiang provincial court. The law is also not perfect, only have one probative judicial interpretation and a conference manuscript related to this issue. Repair and Reconstruction of Patented Products is not only related to the interests of Patentees, Purchaser of patented products, but also related to the interest of public society. Therefore, the cognizance of repair and reconstruction of patented products has an importantly theoretical and practical significance. The theoretical basises of repair and the reconstructions of patented products are the principle of patent exhaustion and the theory of implied license. For patented products sold by the Patentee through legitimate means, the purchaser can freely dispose the patented products, including replace and repair some parts in order to maintain the performance. However, the behavior of repair has some limits. It can't turn into re-assembly the patented product and make a new patented product. The later behavior belongs to the scope of reconstruction, and is infringement. At present, the main criteria of the cognizance of patented product repair and reconstruction is the Claim of Rights. At the same time, they are in reference of instruction manual and attached drawings. In addition, technical analysis of the patented product may also be useful. At last, the principle of universal coverage principle, and Equivalent principle should be followed. To improve the legal system of patented products on repair and reconstruction in our country, firstly we should consider the four influencing factors including: laws, policies, benefits and interests. Secondly, to improve the provisions of legislation about patent products on repair and reconstruction based on the existed laws, clarify the relationship between the two. Third, to establish the principles of cognizance patented product repair and reconstruction, including: principles of protection of patent rights and prevention of abuse patent rights, the principle of interests balance, the principle of estoppels, and the principle of economic interests. Finally, need to establish regulation of law on the repair and reconstruction of patented products.