Several theories about parallel import of patents;
1. "International exhaustion doctrine" theory. This theory means that after the patented product is legally sold, the patentee no longer has control over the use and sale of the product, and the patentee has exhausted their "exclusive rights", and the resale behavior of others does not constitute patent infringement. It can be concluded that the parallel import of patented products is legal and does not constitute patent infringement.
2. "Domestic exhaustion doctrine" theory, namely "regional theory". According to this theory, according to the principle of territoriality of patent right, the same patent is obtained in these countries according to the laws of various countries, and the content and effect of its rights are only recognized in the territory of the enacting country. According to this theory, the exhaustion of the above rights only applies to China, but it still constitutes an infringement of the patent right of the importing country.
3. The theory of "right restriction". This theory is a compromise put forward by some scholars recently. This theory refers to the application of the principle of limitation of rights in parallel import. Under certain conditions, according to the intellectual property rights obtained by the state, the right holder is restricted to prevent parallel import, so that the problem of parallel import, together with exhaustion of rights, fair use and compulsory license, becomes an independent and different manifestation of the principle of right restriction under certain conditions.
The two patents are independent of each other and are different objects protected by the laws of the two countries respectively. Therefore, after the obligee exercises his rights in a country, his rights have been exhausted in that country. However, if the importer of another country imports this patented product into the market of another country, this behavior does not constitute an infringement of the patent right of the exporting country, but it does constitute an infringement of the patent right of the importing country.
Extended data:
Because the patented products imported in parallel are manufactured and sold by the patentee himself or with the permission of the patentee in the exporting country, according to the principle of "exhaustion of rights", the purchaser has the right to dispose of the products he has purchased freely, and the patentee has no right to control the use and sale of the products, so it is not necessary to obtain the permission of the patentee to import the products into another country.
A similar view holds that if the patentee or licensee does not attach clear restrictive conditions when selling its patented products in the exporting country, it means that the "implied license" buyer can freely control the purchased patents, including export, so the parallel import behavior does not need the permission of the patentee.
The view against parallel import holds that the patent right is regional, and the patent right of the exporting country and the importing country are two patents, each with its own scope of effect. The "exhaustion principle" or "implied license" of the exporting country only affects the patent right of the exporting country, but does not lead to the "exhaustion principle" or "implied license" of the patent right of the importing country.
The provisions of article 1 1 of China's patent law on the patentee's import right do not explicitly prohibit parallel import, which needs to be formulated according to China's national conditions and judicial practice.
Baidu encyclopedia-parallel import