Research Handbooks in Intellectual Property series
Edited by Irene Calboli and Edward Lee
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
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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