Yu, Xiang; Yin, Conghui --- "Development of patent exhaustion in Mainland China" [2016] ELECD 852; in Calboli, Irene; Lee, Edward (eds), "Research Handbook on Intellectual Property Exhaustion and Parallel Imports" (Edward Elgar Publishing, 2016) 308

Book Title: Research Handbook on Intellectual Property Exhaustion and Parallel Imports

Editor(s): Calboli, Irene; Lee, Edward

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783478705

Section: Chapter 16

Section Title: Development of patent exhaustion in Mainland China

Author(s): Yu, Xiang; Yin, Conghui

Number of pages: 16

Abstract/Description:

There are currently three different approaches regarding parallel importation throughout the world. One approach permits parallel imports, another prohibits them, and a third approach places conditional restricts on parallel importation. Theoretically speaking, these different approaches reflect the differing principles on exhaustion of intellectual property in the different countries and regions, i.e., national exhaustion, international exhaustion, and regional exhaustion (in the European Economic Area, for example). In fact, the attitudes taken by the different countries and regions on the principle of exhaustion directly relate to the applicable intellectual property laws of those countries, which generally reflects economic and even political considerations. While at the same time these laws have to comply with international agreements like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization (WTO).1 As a developing country, the cost of labor in China is still relatively low compared to developed countries, thus, Chinese enterprises are typically exporters of intellectual property goods, especially patented goods, in international trade practice. Cases involving the parallel importation of patented goods into China are scarce and this problem will inevitably become prominent with the increasing labor cost in China. Additionally, China must also bring its intellectual property laws into harmony with its international trade partners regarding trade-related intellectual property rights. Based on the current Chinese Patent Law, which has been amended three times and went into effect in 2009, this chapter examines the laws and practices related to parallel imports of patented goods in China. This chapter also analyzes the effects and problems with regard to economic considerations, and, based on previous research, offers suggestions on how to apply the principle of exhaustion and parallel imports in China.