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 13: Patent exhaustion and free transit at the interface of public health and innovation policies: lessons to be learned from EU competition law practice

Josef Drexl

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


Patent protection for pharmaceuticals has become a major topic for international trade negotiations. Under the multilateral Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), World Trade Organization (WTO) members are, in principle, required to provide for such protection.1 A large number of recent bilateral agreements have put a particular emphasis on that issue.2 For a rather naïve observer, this movement towards enhanced patent protection must come as a surprise, since patents are exclusive rights under national law that have the potential of restricting rather than promoting parallel trade. The reasons for this are obvious. The interest in promoting global protection seems to trump free-trade principles. Originator pharmaceutical companies argue that they need to recoup their research and development (R & D) investment within the international markets in which their drugs are sold in order to maintain incentives for innovation. Against the backdrop of a globalized economy, pharmaceutical companies may have a point in claiming that especially the newly rich living in emerging economies that are rapidly catching up with the old industrialized countries should participate in the financing of the innovation brought to them through better and more effective drugs.

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