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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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