Research On The Judicial Application Of The Principle Of Exhaustion Of Gene Patent In China

Patent exhaustion is a basic principle that restricts patent rights,that is,after the patented product is sold,the four types of rights on the use,sale,promised sale,and import of the patented product are transferred to the buyer,but the manufacturing right still belongs to the patentee.In judicial practice,the court judges whether the defendant’s behavior is applicable to the patent exhaustion by distinguishing between use and manufacturing.Gene patent,as a type of patent in the field of self-replication technology,will naturally copy offspring patented products with the same traits during use,resulting in the overlap of use and manufacturing.If the gene patent can be applied to the principle of exhaustion,after the gene patent product is sold,the buyer can freely use it,including using its natural replication characteristics to produce offspring products with the same traits,so that the interests of the patentee cannot be fully protected.If gene patent cannot be applied to the principle of exhaustion,it will expand the control rights of the patentee and cause improper restrictions on the buyer’s right to use.The main problem solved in this article is study how gene patent can be applied to the principle of exhaustion in a reasonable way.This article first defines the concept of gene and gene patent,and introduces the uniqueness,development status of gene patent,and patent exhaustion which is one of the restriction methods of gene patent,paving the way for the following analysis of specific legal issues.Next,interpret the current status of judicial application of the principle of exhaustion of gene patent in China,and analyze three existing legal issues:first,gene patent hinders the realization of the balance function of the principle of exhaustion;second,the self-replication characteristics of gene impact traditional methods of use and manufacturing;third,whether after-sale restrictions can exclude the application of patent exhaustion.Then explore the specific solution path,focus on extraterritorial judicial practice,analyze the judicial status of the United States and the European Union on this issue separately,and consider the aspects that our country can learn from.Finally,based on the basic national conditions of our country,propose suggestions for the above problems: first,consider the balance of interests in the judicial application of the principle of exhaustion of gene patent from the three aspects of the national public policy and the development of the gene industry,the balance of interests between the parties,and the degree of influence of descendant patented products on the market value of gene patent;second,on the basis of analyzing the rationality of the judicial application of the principle of exhaustion of gene patent,explore the specific application methods of the principle of exhaustion of gene patent of different generations;third,after-sale restrictions cannot exclude the judicial application of patent exhaustion,and our country applies the model of absolute exhaustion;fourth,farmers’ self-reproduction and unintentional reproduction don’t constitute patent infringement.