A Study On Patent Infringing Concerning Recycling Of Patented Product

With the rapid economic growth, energy shortages and environmental pollutionintensify day by day, building a resource-efficient society, developing recyclingeconomy has become the theme of contemporary China’s development. Recycling asan energy-saving mode of production plays an important part in social development.Recycling refers to waste products continue to use as new products after beingrepaired, refurbished or remanufactured. However, the re-use of the patented productis usually related to the interests of the original patentee, because if the repair exceedscertain limit and break the scope of patent exhaustion, it would be regarded asmanufacture, then the actor would infringe the manufacturing right of patentee. Howto determine the behavior of recycling is legal “repair” or illegal “reconstruction” isthe problem to be solved in this article. Although at present just a few related cases,but with the development of science and technology, and constantly improvement ofthe patentee’s right awareness, there must be a large number of such cases in ourjudicial practice. In order to safeguard the healthy development of China’s recyclingindustry, we need to clarify this issue.Therefore, this article is divided into four parts to explain my opinion:Chapter1.Raising the questions of patented product recycling in patentinfringement through analyzing judgments and details of the three cases of domestic“new wine in old bottles loaded”, and then describes the main types of patentedproducts recycling behavior, then combined with generally constitute patent infringement elements and clarify the two acts constitute infringement, meanwhilepoint out the difficulties of judging patented products recycling is how to distinguishrepair form reconstruction.Chapter2. This part introduces the definition of recycling, it summarizes thethree composition elements of re-use patented product infringement with the guidanceof related principles of patent law: Actor for production or business purposes; thepatented product is spent; The actor essentially re-manufacture products. And then byanalyzing typical cases of the United States, it summarized several factors whichshould be taken into account in the judicial practice. Because such cases not onlyinvolve legal issues, but also with complex technology, and other issues, we shouldbuild the value system in macro to settle such cases, in order to provide guidance forour future judicial practice.Chapter3. This part discusses the patent exhaustion principle which is the deepertheoretical basis of infringement judgment of recycling patented products. Then itdescribes the rationalization and necessity of the application of exhaustion principle inpatent infringement issues, and introduces the development of patent exhaustiontheory in different countries, then does a comparative analysis to further clarify thescope of application of our patent exhaustion principle.Chapter4. Put forward advices to improve the relevant laws and regulations byanalyzing the current provisions about the re-use patented product. Based on thecomplexity of the patented product recycling behavior, it should define the concept ofreconstruction of patented product, and determine the factors for judges in dealingwith such cases using their discretionary rights. At the same time, improve theremanufacturing industry laws and regulations, and in order to promote the healthyand orderly development of remanufacturing industry, make some suggestions for there-manufacturing-related companies to avoid such patent infringement disputes.