Research On American - Chinese Legal System Of Parallel Import Of Patented Products

Parallel importation refers to the act or the scenario where the sold products or services within a certain jurisdiction, which have been conducted or agreed by the IP right owner, are imported without the authorization thereof. It arises from the differentiated pricing and potential profits among nations, or the lack of desired products within a nation. However, the low-priced products by way of parallel importation constitute an attack to the sale of patented product by the owner domestically, thus bringing forth the issue of parallel importation.Currently, the principle of ’domestic exhaustion of IP rights’ prevails in respect of patent and copyright matters in the U.S., whereas the ’territorial and universal’ approach takes effect in trademarks. Ever since World War II, the U.S. is not a proponent of’international exhaustion of IP rights’all along, fighting against parallel importation included in the international law of TRIPS. This is a bar to the free trade that the U.S. is supposed to advocate, and reveals that the U.S. territory is limited to the imports of the same origin for the sake of local right owners, while the market access shall be open to multinationals outside the U.S.China indicates in the2009third amendment of Patent Law that the principle of ’international exhaustion of IP rights’would prevail at the issue of parallel importation of patented products. Nevertheless, it is not a good solution for the patent issues in China, as we are pressed by the U.S. authorities and multinational companies in strengthening the IP enforcement level. Thus, we shall endeavor to balance between free flow of patented products and patent enforcement globally by overall planning, legislation and regulation, which will further be conducive to the clarification and stipulation of parallel importation under the WTO framework.This thesis is intended to address the issue of parallel importation of patented products under the international legal framework and to compare the legal systems between the U.S. and China. The tentative study shows that the issue is left to the national laws of TRIPS members, not binding on the U.S. and China in the matter of patent right exhaustion. As such, the U.S. tough practice of domestic exhaustion by case study is a reference to China’s laws and judicial interpretations in regulating parallel importation of patented products and further to China’s play under the international law.