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

The repair and reconstruction of patented products is not a new question inAmerica. In this issue, the Supreme Court of United States judged the Wilson case asearly as1850. And there were cases judged by the United States Court of Appeals andthe Supreme Court of United States from time to time after the Wilson case. While inChina, there were only two cases about repair and reconstruction of patented products.And the law in this issue is not perfect in China.The primary purpose of the Doctrine of patent Exhaustion is to solve theproblem of controlling of patented products by the patent right after it is sold. As aresult, the owner of the patented products has the right as to making, use, or sale ofinvention because the Doctrine of Patent Exhaustion prevented patent holder fromfurther asserting his patent rights with respect to patents substantially embodied bythose products. The patented products used for a period of time will suffer some wearand tear and damages inevitably. Repairing this kind of patented products should bein the scope of Doctrine of patent Exhaustion. In order to achieve the purpose ofDoctrine patent Exhaustion, the Doctrine should include the action that is akin torepair. Repairing the patented products should also be characterized as permissible byvirtue of Implied License. Regardless of any theory explaining the legitimacy of therepair of patented products, the reconstruction of the patented products, in the nameof repair, is forbidden.The crux of the problem of the repair and reconstruction of the patented productsis how to establish both the principle and the standard of the legal distinction betweenreconstruction and repair. The legal distinction between reconstruction and repairshould be affected by three principles as follows: well protected the fundamentalinterests of the community and stability of ownership, prohibition of abuse of patentright, and reasonable protection of patent. The first two principles should takeprecedence over the third one. The distinction between repair and reconstruction ofthe patented products should be considered from the perspective of implementingreconstruction rather than of whether the acts falling into the scope of patent exhaustion. The reconstruction of patented products must simultaneously satisfy twoelements as follows. The first one is the reconstruction of patented products mustsatisfy the elements of the general patent infringement after the patented products arespent as a whole. And the second one is that the essential part of patented productsshould be in keeping with the different technical features of independent claims ofpatent again after the reconstruction of the patented products. After determining thescope of the reconstruction of patented products, the action of changing the patentedproducts which is out of the scope of reconstruction must be characterized aspermissible repair of the patented products, and does not infringe the patent. This isthe suggestion of the legal distinction between reconstruction and repair of patentedproducts.