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This article analyses and compares the two main approaches that deal with the relationship between patent exclusive rights and the artefacts embodying patented inventions (usually chattel). Namely, it examines the implied licence approach and the exhaustion approach, at the national and international level, and extrapolates the scope of patent exclusive rights under these two models. The article uses the international dimension to highlight that having two approaches complicates international trade and that this is exacerbated by the nature of the exclusive rights themselves. Highlighting the fact that several exclusive rights only exist upon embodiment, do not marry up to the invention as claimed, and are – for all intents and purposes – served by rights in choses in possession, the article argues that several patent exclusive rights have no practical purpose. The article suggests a simplified approach to patent exclusive rights and thereby the relationship between patented inventions and their physical embodiments.

The exhaustion of patent rights v the implied licence approach: untangling the web of patent rights