Exhaustion doctrine

The exhaustion principle states in intellectual property that a holder of property rights (such as a patent, utility model, a design, a trade mark or copyright ) regarding this specific product can no longer rely on his protection law, once the product has been placed on the market with his consent for the first time is.

Example

If an item that is based on a patented teaching, sold voluntarily by the patentee to a third party, the third party may resell these individual, certain patented object ( not only in the private sector ), without him this gem of the patent holder. § 139 ff of the Patent Act ( IPA) may prohibit, in conjunction with § 9 of the Patent Law.

Background

Intellectual property rights grant from an economic perspective state-protected monopoly rights. The owner has applied regularly lot of time and money to produce the protected information. Therefore, the property right is to ensure that he receives the monopoly revenues from the sale of patented articles. This protection purpose, however, is reached when the owner has brought the subject for consideration in traffic. His other powers to the concrete thing (not protected on the entire information ) are thereby exhausted.

Scope

The exhaustion principle applies to both the nation-state as well as in the European Economic Area.

European Economic Area

For the Europe-wide exhaustion is, however, some peculiarities. Because one of the objectives of the European Union is the realization of a single market (see European Single Market). This includes in particular the elimination of trade-restrictive measures. The (national) intellectual property but shall have exclusive rights by granting the holder a monopoly and restrict to the fact the internal market. On the other hand, commercial property rights a great incentive for economic development. Moreover, the EU would intervene in the property ownership in the Member States, if they would explain that the (national granted ) intellectual property rights by putting in a Member State exhausted in all other. This tension, it is dissolved.

Legal Background: This tension also arises from provisions of the FEU Treaty (Treaty on the Functioning of the European Union). In the standards of Article 34 TFEU, 36 the objective of the single market is regulated, not to intervene in Article 345 TFEU, a bid for the EC, in the nation-state property ownership.

The Court resolves this tension, for example, by specifying that (only ) must not be interfered with measures include the protection of the specific subject matter ( core of the protected right ). The import law ( eg when parallel imports ) is not a core component of the right. Therefore, parallel imports are permitted.

Switzerland

The Swiss Federal Court has decided in 1999 in the Kodak decision for the national exhaustion of patent rights. With the revision of the Federal Law on Patents for Inventions ( Patents Act, SR 232.14 ), the principle of regional exhaustion in the EEA was unilaterally taken by the new Article 9a. A single exception, Article 9a, paragraph 5 for goods before which the price is fixed by the state. Continues to apply the principle of national exhaustion for these. The revised law has been in force since 1 July 2009.

For trademark and copyright of the principle of international exhaustion applies. The Swiss Federal Court has laid down this principle in both decisions Chanel and Nintendo.

Important decisions

• USSC Quanta Computer v. LG Electronics
• BGH "Handling Device"
• Kodak decision