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NISCAIR ONLINE PERIODICALS REPOSITORY (NOPR) >
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Journal of Intellectual Property Rights (JIPR) >
JIPR Vol.16 [2011] >
JIPR Vol.16(6) [November 2011] >
| Title: | Patent Monopoly and Doctrine of Exhaustion: Limits on Exclusive Right |
| Authors: | Himanshu, Vijay Kumar |
| Keywords: | Patent
Monopoly
Doctrine of exhaustion |
| Issue Date: | Nov-2011 |
| Publisher: | NISCAIR-CSIR, India |
| Abstract: | A patent is granted for an invention that is novel, non-obvious,
and has an industrial application. The proprietor of the patent grant is able
to exploit and control the use of patented matter. Patent as a form of personal
property may be assigned, licensed, mortgaged and may devolve by operation of
law. The patent exhaustion doctrine, also known as the first sale doctrine,
operates to ‘exhaust,’ or extinguish, the exclusive rights of sale and use as
to patented articles sold with the patent owner’s authorization. In this
background, this article develops the concept of exhaustion and surveys the
nature, scope and ambit of the doctrine of patent exhaustion. The relevance of
doctrine and right of exclusivity is thoroughly discussed with regard to
commercial transactions involving licensing, assignment, sale, disposal or
offer of disposal of the patented articles. The article concludes that those
conditions which are within the scope of patent monopoly act as limits on the
doctrine of exhaustion of right in the sold goods. The exhaustion of right is
limited to patented goods, therefore the purchaser has all rights except right
to reconstruct. This article while discussing the doctrine from international
and national perspective suggests rethinking of the nomenclature of doctrine of
exhaustion as contained in Article 6 of the TRIPS Agreement. |
| Page(s): | 453-462 |
| CC License: |  CC Attribution-Noncommercial-No Derivative Works 2.5 India |
| ISSN: | 0975-1076 (Online); 0971-7544 (Print) |
| Source: | JIPR Vol.16(6) [November 2011]
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