Legal Consideration On Repair And Reconstruction Of Patented Products

With the development of Chinese economic,the trend of globalization flow of goods strengthened significantly,and the products are challenge by domestic and international intellectual property more and more.The forms of patent infringement are diversification,and it is difficult to define the boundaries among each behavior clearly.lt should be considered various factors to identity infringement.Repair and reconstruction of patent products behaves more especially.Repair and reconstruction of patent products is not only related to the patentee and the alleged infringer,but also related to large enterprises and industries,such as after-sales service industries and export industries.The legal case of repair and reconstruction of patent products are very common in the United States and Japan,but it does not expressly provide for repair and reconstruction of patent products in our country because of our legal system,and there is no in-depth study,as well as a systematic theory systems. Therefore,the discussion and legal regulation of repair and reconstruction of patent products have important practical and theoretical significance.To identify repair and reconstruction of patent products,it is related the the theory ofinterest balance,the theory of patent exhaustion and patent indirect infringement. According to the theory of interest balance and patent exhaustion,repair is allowed.From the point of repair purpose,repair is order to restore the use function of the patented products.Thus,repair is belong to the use function.Reconstruction is not legal,because the essence of reconstruction is re-manufacturing,and manufacturing rights are belong to the patentee.Even if the patented products are put into the market,the rights are not transferred,and the patentee can use the right to manufacture the patented products.Therefore,the reconstruction of patented products should be restricted,and it should be lead into the patent indirect infringementtheory.The principals todistinguish repair and reconstruction of patented products include the principle of interest balance,the principal of full use and helpful to industrial competition.The reference factors to define repair and reconstruction are related to the conception of repair and reconstruction,the theory of patent exhaustion,and behavior and social background, mainly including the scrap of the patented products,the degree of replacement or processing and transformation,market demand,the degree of similarity, and sales.In order to improve our legal system,it should be do from the patentee’s market share,the patentee implementation capacity,and the ratio of patented technology in products,and it should to strength the professional quality of judges and the legal literacy of the parties.