Integrating Public Health Concerns into Patent Legislation in Developing Countries
(2000; 140 pages) [French] [Spanish] View the PDF document
Table of Contents
View the documentTHE SOUTH CENTRE
View the documentFOREWORD
View the documentACKNOWLEDGEMENTS
View the documentGLOSSARY*
Open this folder and view contentsI. INTRODUCTION
Open this folder and view contentsII. PATENTABLE SUBJECT MATTER
Open this folder and view contentsIII. SCOPE OF CLAIMS
Open this folder and view contentsIV. PATENTABILITY REQUIREMENTS
Open this folder and view contentsV. SPECIAL CASES IN PHARMACEUTICALS
Open this folder and view contentsVI. DISCLOSURE
Close this folderVII. EXCEPTIONS TO EXCLUSIVE RIGHTS
Open this folder and view contentsVII.1 Experimental Use
Open this folder and view contentsVII.2 Early Working
Close this folderVII.3 Parallel Imports
View the documentVII.3.1 Options - Parallel Imports
Open this folder and view contentsVII.4 Individual Prescriptions
Open this folder and view contentsVIII. EXAMINATION AND OBSERVATION PROCEDURES
Open this folder and view contentsIX. CLAIMS INTERPRETATION
Open this folder and view contentsX. COMPULSORY LICENSING
View the documentXI. FINAL REMARKS
View the documentREFERENCES
View the documentBACK COVER
 

VII.3.1 Options - Parallel Imports

National laws may contain a provision relating to parallel imports on an international scale, as follows:

Parallel Imports
Model Options

1. A patent shall have no effect in relation to a product which has been put on the market in any country by the patent holder or with his consent.

2. A patent shall have no effect in relation to a product which has been put on the market in any country by the patent holder, with his consent or in other legitimate manner.

3. A patent shall have no effect in relation to a product which has been put on the market in any country by the patent holder or by an authorized party.

Option 1 provides for an exception relating to parallel imports originating in any country, subject to the condition that the product was marketed in such country by the patent owner or with his consent.

Option 2 broadens the exception, as it would also allow parallel imports in cases where the product was marketed in a foreign country in a legitimate manner, even without the authorization of the patent owner, such as where the product was not protected140 in the exporting country, or where it was sold under a compulsory license. This Option may be more vulnerable to challenge in the WTO than Option 1.

140 With the implementation of the TRIPs Agreement, pharmaceutical product patents will be recognized in all countries which are Members of the WTO. Therefore, the situation of lack of protection will become exceptional. It may still occur in cases where the inventor company decides not to apply for a patent in a given country, or where an application has been refused and, therefore, the respective product remains in the public domain.

A possible compromise between these two Options would be to limit the cases in which parallel imports without the consent of the patent owner are permitted, by requiring that the sale in the exporting country be made by an authorized party (Option 3). The authorization may be given by the patent owner or by a State authority under a compulsory license.

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