Die gemeinschaftsweite Erschöpfung im Wandel der Zeiten

The new European Patent Package came into force on June 1, 2023. It introduced the new European patent with unitary effect. Furthermore, it contains new regulations concerning classic European patents. In Art. 6 of the regulation (EU) No. 1257/2012 and Art. 29 of the Agreement on a Unified Patent Court (UPCA), the Patent Package deals with the exhaustion of patents. They are largely identical. Clause 2 of each of them exclude exhaustion if »there are legitimate grounds for the patent proprietor to oppose further commercialisation of the product«. This exception clause outlines a new limit to the exhaustion rule. A comparable clause had already been included in the previous drafts (Convention for the European patent for the common market [1975 and 1989]; Proposal for a Council Regulation on the Community patent [2000]). However, the wording of the exception clause has changed in some essential aspects in the course of the drafts. The historic perspective gives guidance for the interpretation of the current exception clause. The article yields the following results: 1. The exception clause refers only to two types of use of the invention, namely offering and placing on the market. 2. Legitimate grounds do not have to be laid down in statutory (EU) law. However, they must be related to the specific subject matter of the patent. 3. Only grounds concerning the patent proprietor may be relevant. 4. »Legitimate grounds« may be groups of cases according to those developed for the comparable clause in Art. 7(2) of the Trademark Directive insofar as the aspect of damage to reputation impairs the economic exploitation of the invention. On the other hand, however, reasons specific to patent law come into question, whereby the clause is to be interpreted restrictively. Thus, its practical scope of application is narrow, especially in relation to its dogmatic significance.