Patent Law and Theory
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Patent Law and Theory

A Handbook of Contemporary Research

Edited by Toshiko Takenaka

This major Handbook provides a comprehensive research source for patent protection in three major jurisdictions: the United States, Europe and Japan. Leading patent scholars and practitioners join together to give an innovative comparative analysis both of fundamental issues such as patentability, examination procedure and the scope of patent protection, and current issues such as patent protection for industry standards, computer software and business methods. Keeping in mind the important goal of world harmonization, the contributing authors challenge current systems and propose necessary changes for promoting innovation.
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Chapter 17: The Scope of Patent Protection for Spare Parts and its Extension through Other Tools of Intellectual Property

Horst-Peter Götting and Sven Hetmank


Horst-Peter Götting and Sven Hetmank 1 Introduction In many cases a patentee is not only interested in controlling primary markets, for example production and distribution of a protected device; his interest also extends to the sector producing spare parts and operating materials that are needed to use the protected invention. This so-called secondary market can be very profitable because it may simply materialize or it can be stimulated with little effort. Therefore, primary products such as vacuum cleaners, ink jet printers or coffee pod machines are often sold at a reduced price to cut the deal on the secondary market. In addition to well-known strategies such as tying, exclusive dealing and creating technical incompatibilities, firms increasingly use intellectual property rights in order to control those secondary markets. This chapter will give a survey of the scope of patent protection from the perspective of the spare parts market (Section 2). Besides this it may be of interest how patent protection can be supported by other tools of intellectual property and how allocation of secondary markets is dealt with in other branches of intellectual property law (Section 3). This will finally lead to some notes on antitrust law (Section 4) and the question of justification of market foreclosure in spare part markets through intellectual property rights (Section 5). 2 The scope of patent protection for spare parts It is well known that patent systems all over the world give patentees the right to exclude others from making, using or selling their...

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