A Study On Patent Infringement Determination Concerning Repair And Reconstruction Of Patented Product

Currently, all countries in the world are promoting actively to reuse the renewableresources. Our country has taken the Developing Circular Economy as a strategy. During theprocess of enforcing the3R principle, the patent issues of the reuse the renewable resourcescannot be allowed to avoid, of which the most import question is related to legality about therepair and reconstruction for patent products. Generally, after the patent product was sold bypatentee legally, the purchaser usually replaces a few parts or do some repair to maintain thefunction of the product. However, the repair should be limited in a certain level, otherwise itwould become an illegal behavior-reconstruction, which means re-assemble or manufacture anew patent product. So far, the definitions about repair and reconstruction were not given inour country’s patent law or other law system, neither regulations on how to judge the repairand reconstruction could be according to. Therefore, the discussion and legal regulation ofrepair and reconstruction of patent product have important practical and theoreticalsignificance．This thesis aims at the study of patent exhaustion doctrine. Through the studyof cases of United States and Japan, to analysis the standpoint of them; through the evaluationof the benefit of all parts related to the patent product, to discuss the application of patentexhaustion and implied license, and to summarize a few factors to identify the repair andreconstruction, such as the comparing lifetime between the replace parts and the patentproduct, if the patent product was worn entirely, the difficulty of the replacement and if thereplace part is the substantial element. The author suggested that the legal system on patentexhaustion should be established more pragmatically, particularly, for the repair andreconstruction; it is wise for our country to take the position of more strictly on reconstructionand loose repair. To provide the living space for the repair and remanufacture industry in ourcountry, under the premise of balancing the benefit of the patentee and social public, to limitthe right of the patentee reasonably, and to enlarge the application scope of patent exhaustionappropriately is more pragmatically.