Table of Contents

Research Handbook on Intellectual Property Exhaustion and Parallel Imports

Research Handbook on Intellectual Property Exhaustion and Parallel Imports

Research Handbooks in Intellectual Property series

Edited by Irene Calboli and Edward Lee

From the Americas to the European Union, Asia-Pacific and Africa, countries around the world are facing increased pressure to clarify the application of intellectual property exhaustion. This wide-ranging Research Handbook explores the questions that pose themselves as a result. Should exhaustion apply at the national, regional, or international level? Should parallel imports be considered lawful imports? Should copyright, patent, and trademark laws follow the same regime? Should countries attempt to harmonize their approaches? To what extent should living matters and self-replicating technologies be subject to the principle of exhaustion? To what extent have the rise of digital goods and the “Internet of things” redefined the concept of exhaustion in cyberspace? The Handbook offers insights to the challenges surrounding these questions and highlights how one answer does not fit all.

Chapter 7: Working toward international harmony on intellectual property exhaustion (and substantive law)

Vincent Chiappetta

Subjects: law - academic, intellectual property law, international economic law, trade law


The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)1 was an important watershed in the international law of intellectual property rights (IPRs). It moved the effort to harmonize transnational intellectual property (IP) beyond regime specific agendas to setting standards governing all IPRs. It also created a unique dispute resolution process for addressing complaints regarding member nations’ non-compliance and, by connecting it to the World Trade Organization (WTO), explicitly tied IP law to international trade. Although the parties reached agreement regarding a wide array of significant substantive points, one issue proved intractable. They could not reach consensus regarding IPR exhaustion—how an IPR owner putting goods into one WTO member’s domestic market would affect its parallel IPRs in other WTO nations. That point might seem a mere matter of detail in the context of such an overwhelmingly successful negotiation. However, examining the reasons behind the failure to agree on exhaustion explains not only why the issue remains so divisive, but also why the domestic implementation of TRIPS has proven so problematic. More importantly, that understanding provides a way forward regarding both exhaustion and harmonization.

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