Intellectual property law issues involved in remanufacturing

Abstract In June 2010, China issued the "Opinions on Promoting the Development of Remanufacturing Industry", clearly stipulating that the scope of remanufacturing of auto parts will be expanded from engines and gearboxes to transmission shafts, oil pumps, pumps and other components; Promote the re-engineering of construction machinery, machine tools, etc...

In June 2010, China issued the "Opinions on Promoting the Development of Remanufacturing Industry", clearly stipulating that the scope of re-manufacturing of auto parts will be expanded from engines and gearboxes to parts such as drive shafts, oil pumps, pumps, etc. Remanufacturing of construction machinery, machine tools, etc., renovation of large-scale used tires. By the end of 2009, China had formed a remanufacturing capacity of 230,000 sets of automobile engines, gearboxes, steering gears and generators. It can be expected that with the strengthening of policy support, the maturity of industrial technology, and the gradual recognition of consumers, China's remanufacturing industry will have much to offer.

However, the remanufacturing industry still faces some difficult problems to solve, and it needs to be supported by many parties in the future exploration.

Intellectual property law issues involved in remanufacturing
Remanufacturing is between repair and manufacturing, and inevitably has an impact on the intellectual property (patents, trademarks, product packaging and decoration) contained in the product. Will re-manufacturing of patented products infringe patent rights? What are the boundaries between remanufacturing and repair?

What kind of trademark should the remanufactured product be sold, whether it is the original trademark or the trademark of the remanufacturer? The use of the original trademark for sale will undoubtedly infringe the original manufacturer's trademark, and it may not be appropriate to use the remanufacturer's trademark, as it may involve reverse counterfeiting.

Product quality law issues involved in remanufacturing
It is common in the media to assemble and scrap cars, motorcycles, old appliances and frequent accidents. One of the reasons for repeated prohibitions is the lack of legislative norms. New products are subject to quality standards and inspection procedures. Manufacturers are subject to the supervision of the national quality inspection department and must comply with the Product Quality Law and the Consumer Protection Law. However, at present, the country has not legally regulated remanufactured products. The remanufactured products lack the regulation of the product quality law. How does the state monitor its quality?

In summary, China should promulgate the relevant laws and regulations of the remanufacturing industry as early as possible to guide the development of the industry and standardize the industrial market.

Remanufacturing is a method of product regeneration. Different from traditional products that completely destroy the form and use only the raw material value, such as the recycling of steel, plastic, glass and other materials in used cars, remanufacturing is guided by the design and utilization of the product life cycle. On the basis of waste products, a general term for a series of technical measures or engineering activities that do not destroy the physical form of waste products and repair or modify used products. The object of remanufacturing -- "products" is broad. It can be a device, a system, a facility, or a component; it includes both hardware and software.

Reconstruction: A legal concept with a definite meaning. According to the interpretation of the Longman Dictionary of Contemporary English, it is: (after destruction) reconstruction and reconstruction. According to the Black Law Dictionary, it is: reconstruction or reconstruction, re-formation, or restoration of the overall loss or damage of the object. These two explanations are the same. In the US jurisprudence Aro Manufacturing Co. v. Convertible Top Replacement Co., 365 U.S. 336 (1961), the Justice Supreme Court's Justice Whittaker has a typical definition of reengineering: “Reengineering is limited to the retirement of a patented product as a whole. In essence, the remanufacturing of a new product is made. This article adopts this definition and defines reengineering as a strict legal concept. Reproduction without the permission of the right holder infringes the patent.

Reengineering is divided into two categories: permission by the right holder and permission by the right holder. Reauthorization with the permission of the right holder is authorized by the right holder and does not infringe the patent right. Unauthorized re-creation is not authorized by the right holder, and its legal consequences are equivalent to unauthorised manufacturing activities. It is a violation of the patent law and is a patent infringement.

Reconstituted elements
How to determine the legal nature of remanufacturing, which involves the boundaries of repair and re-engineering, the boundary between the two is rather vague, and how to draw a line between repair and re-engineering is not just a factual or legal issue, to a large extent It reflects the national policy orientation and the degree of development of the remanufacturing industry, reflecting the outcome of the game between the remanufacturing industry and the rights holders.

According to the definition of re-creation by Judge Whittaker of the US Supreme Court: “Reengineering is limited to the re-manufacturing of a new product after the patent product is scrapped as a whole.” With reference to this definition and the principle of patent law, the author concludes that it constitutes infringement. Reconstructed "four essentials":

1) The product has a patent right. Reconstructed objects are patented products, patents can be divided into product patents and process patents, so there are two possibilities for remanufacturing: the product or its parts have product patents, or the products or parts are made by a patented process.

Whether A re-manufacture of a product with a product patent or its parts constitutes an infringement shall be further judged according to the following three elements: overall scrapping, substantial re-creation, and exceeding the technical requirements for repair.

B Remanufacturing involves the patent process and will undoubtedly constitute infringement, which is the scope of the patents of the patent law. The analysis in this paper excludes the case where the product contains a process patent. The following "patent products" are products containing product patents.

2) Overall retirement. The patented product has been completely scrapped, and the usual replacement or repair has been unable to restore its use value. Usually, users can only purchase new products to obtain the same use value;

3) Substantially recreated. Remanufacturers "concrete a new product in essence," and the purpose and consequences of remanufacturing are like re-manufacturing new products. The purpose of remanufacturing is to obtain the lifetime value of the new product, rather than extending the life of the old product. The remanufactured product has almost the same use value and almost the same life as the new product.

4) Exceeding the technical requirements for repair. Reengineering is not a general repair act. Reengineering requires more than the technical capabilities, special equipment and special processes required for repair. General repairs have not restored the performance of old products. Such as the US Federal Supreme Court's decision on the "bit case." This is why the remanufacturing of the clutch in the "Truck Clutch Case" does not constitute a re-engineering: the technical requirements for large-scale remanufacturing of used clutches using the production line do not exceed the technical capabilities required by a repairman to remanufacture a used clutch. The technical ability is simply to disassemble the old clutch, replace the scrapped parts with new ones and reassemble them into new clutches.

The remanufacturing behavior that meets the above four elements constitutes a reinvention of patent infringement, rather than legal repair. According to the above four elements to analyze the relevant US jurisprudence, the same conclusion can be drawn.

Comparison of repair and reconstruction
1. The same thing in repair and re-engineering: the act of restoring the performance of a product that has been used and damaged.

2. Differences between repair and reconstruction:

1) Different products are targeted. Repairs are for products that have not reached retirement during the life cycle; remanufactured for products that have exceeded their life cycle and should be scrapped. Such as cars, motorcycles, bicycles, and household appliances that have exceeded their useful life.

2) Whether it is necessary to obtain authorization from the right holder. Repairs are not legally authorized without the authorization of the right holder; re-creation needs to be authorized by the right holder and is an agreed right.

3) The legal consequences are different. Repair is a legal act; unauthorized re-infringement violates the intellectual property rights of the right holder and is illegal; authorized re-engineering is a legal act.

The remanufacturing supply chain under different recycling laws will also be very different. For example, the legal research design combines the price discount of the recycled product price with the recycling compensation under the distributor liability law, prompting the supply chain members to cooperate. The remanufacturing industry needs strong support from laws and policies to make the total return of the supply chain reach the benefits of centralized decision-making.

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