K.M. WAZIRI & O.F. AWOMOLO, EXHAUSTING PATENTS: UNDERSTANDING THE CONFLICTING NOTIONS., I JIPS (2017).

Abstract

The patent exhaustion doctrine limits a patent holder’s extent of monopoly over patented goods. This exclusive right exists only while he maintains ownership of the said goods, such that once he sells or authorises another to sell any goods, he loses his rights to exercise any further control over them. Of late, patent holders, in a bid to boycott this limit to their monopoly, control the distribution of their goods and to extract additional royalties/rents from downstream users, or reduce competition against their goods are attaching conditions to the sale/license for sale of their goods. The manner in which patent laws across jurisdictions have handled such situations has led to two conflicting notions of patent exhaustion. While one notion makes patent exhaustion mandatory regardless of whether the patent holder has subjected the sale to express restrictions, the other treats patent exhaustion as conditional, applying only where the patent holder imposes no such restrictions. This Article seeks to present a clear, comprehensible discussion of the exhaustion doctrine as well as its conflicting notions with a view to assist nations codify their laws in ways which may eventually resolve the seeming conflict of notions.