Recognition Of Specialized Products In Patent Implied Licenses Based On Sales

Implied patent licensing refers to the patent licensing form established under certain circumstances by the patent holder's implied act of non-explicit licensing,which gives the accused infringer reasonable trust to allow the use of his patent.Implicit licensing of patent is essentially a form of implied licensing contract.Implicit licensing of patent can be summarized as: Implicit licensing of patent based on technical standards,technology promotion,product repair,prior use,original agreement,breach of contract,parallel import,product sales and other different situations.In this paper,the patent implied license based on sale is the patent implied license based on product sale.Specifically,it means that the patentee or his licensee has sold the product parts or special equipment(hereinafter referred to as "the products involved")which are patented for the manufacture of patented products or the implementation of patented methods,and the above-mentioned parts or special equipment have no other non-infringement purposes except for patent application.Moreover,the patentee or its licensee did not explicitly put forward restrictive conditions when selling the above-mentioned products,so the patentee granted the implied license to the purchaser of the product in question.The United States uses "bandag test framework" in the recognition of patent implied license based on sales: 1.The products involved do not have any other non-infringement purposes except for patent exploitation.2.Implicit permission was implied in the circumstances of the sale of the products involved.In this paper,the first condition of "bandag testing framework" is discussed.The relevant documents in our country also stipulate the implied license of patent based on sale.In the confirmation conditions,the product involved should be the parts or equipment specially used for patent implementation,that is,the patent-specific product.The special products in patent implied license based on sale in our country correspond to the products without non-infringement use in the US system,that is,the products involved should be the special products for patent application.Whether the products involved belong to the patent-specific products or not is an important condition for identifying the patent implied license based on sale.The relevant documents and cases in China do not further explain the identification of the patent-specific products,nor do foreign judicial precedents clearly explain the products without non-infringement purposes.Because there are many related judicial practices abroad,we can use relevant cases abroad to further explore the identification of special products.As the key element of patent implied license recognition based on sales,special products are bound to be restricted by the theoretical basis and institutional purpose of patent implied license.The system of patent implied licensing based on sales aims at balancing the interests of patent rights.The theoretical basis is to protect the reasonable trust of the purchasers of the products involved and to restrict the patent rights in the form of contract law.Foreign judicial practice,on the one hand,emphasizes that the judgment of the nature of the products involved belongs to the implementation judgment,on the other hand,it gives the non-infringement use of the products involved a lot of room for establishment out of concern that the reasonable rights of the patentee may be damaged,and then unreasonably squeezes the space where the plea of patent implied license is established.When deciding whether the products involved belong to the special products for patent application,the interests that need to be ensured by the patent implied licensing system can be implemented into the specific identification steps and standards of the special products.In this way,we can ensure the interests of the relevant subjects and the reasonable space for the establishment of patent implied licensing,so as to give full play to the system value of patent implied licensing.The first is to ensure that the reasonable interests of the patentee are not harmed,and the second is to ensure that the purchaser's judgment on the nature of the product gives the patentee reasonable trust to allow the patentee to implement the patent.