A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Toshiko Takenka
Chapter 18: The Exhaustion of Patent Owners’ Rights in the European Community
Thomas Hays Introduction Until the United Kingdom Patents Act of 1977 – ‘until’ meaning exiting from the first reasoned judicial notice of the existance of patents in the fifteenth century – patents at common law were choses in action.1 Choses are things, rights which had to be defended through bringing legal or equitable proceeding rather than by the physical possession of them. Such rights, like the right to work a patent, import protected goods and offer the goods for sale, are exclusory: they are the right to exclude others from doing the acts reserved to the patent owner. A licence is an expression of a patent owner’s giving permission to another to exercise one or more of the exclusory rights, following the general form: ‘If you, the licensee, do any of the acts listed herein and pay me, the licensor, for the privilege, I promise not to sue you for infringing my patent’. The existence of a licence is a defence to an allegation of infringement. Patent rights cover the commercialization of goods made to a patent up to the point the particular rights are waived. For example, a patent owner has the right to exclude products made to the patent from importation into a country where the patent is in force. The exclusory right is exercised by repelling the imports. The patent owner can continue to repell imports, over and over, every time the goods are presented at customs. An exclusory right can be waived by allowing another to perform one...
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