Patent Exhaustion in Europe

The European Union has developed the principle of Community Exhaustion

A patent is a form of intellectual property that grants to a patentee an exclusive right to use and market an invention or process. The doctrine of patent exhaustion stipulates that once an invention has been placed on the market, it may be resold or otherwise circulated.

National Patents and the European Free Market

Each European country has its own organizations which grant patent protection at a national level. One of the major issues in European Union law is how to reconcile these national intellectual property rights with its aim of promoting a free market across the European Union.

Balancing Rights

The European Union was set up with the original aim of promoting a free market in goods and services across its various Member States. The concept of patent exhaustion endeavors to balance two conflicting aims. On the one hand, a patentee will wish to protect his invention from unauthorized use by others and in particular will seek a financial return for his efforts. On the other hand, it is deemed to be in the interests of the general public that goods are permitted to flow freely within the market.

Community Exhaustion

The concept of community exhaustion is enshrined in the case law of the European Union. It provides that a patent which has been issued in one Member State shall be exhausted if that product is sold in any other Member State, provided that the initial sale took place with the consent of the patentee.

References

• Patent Litigation in Europe:Ladas &Perry LLP
• Jens Schovsbo: Exhaustion of Rights and Common Principles of European Intellectual Property Law