In order to import a patented product, the country in need may apply the international exhaustion principle and allow parallel imports or grant a compulsory licence either to import or to manufacture the protected product. The understanding given by the Members to paragraph 6 in some of the proposals mentioned above, clearly implies that a compulsory licence can be satisfied by imports, and not only by local production¹⁰¹.

¹⁰¹ Some national laws require, however, the compulsory licencee to locally produce the invention. Unless amended, such legislation can make illusory a solution under paragraph 6 based on either Article 31 (f) or Article 30, since in both cases the assumption is that the compulsory licencee is able to import in order to execute his licence.

A review of the patent laws of seventy developing countries and LDCs (Table 2) indicates that the majority provide for compulsory licences in case of failure to exploit or to do it on reasonable terms - in line with Article 5A of the Paris Convention - while only 13 provide for grounds relating to public interest and/or national emergency or health emergency.

Table 2

Grounds for compulsory licences in developing countries and LDCs

Source: Thorpe, 2002.

Though more detailed research on national laws is required, this information suggests that in order to make operative any solution under paragraph 6, many developing countries and LDCs would need to amend their national patent laws.