Intellectual Property and Access to Essential Medicines
Edited by Obijiofor Aginam, John Harrington and Peter K. Yu
Chapter 7: Seizure of generic pharmaceuticals in transit based on allegations of patent infringement: A threat to international trade, development and public welfare
The European Union (EU) amended its border control regulations in 2003 in a way that allegedly signalled permission to EU patent holders to demand seizure of goods in transit through EU ports and airports. The precise intention of the EU Intellectual Property (IP) Border Regulation (Council Regulation 1383/2003, 2003) has been the subject of some controversy among European courts. What has generated intense controversy, however, is the use of the regulation as the basis for seizure of pharmaceutical products alleged to be infringing ‘local’ patents on their way through European airports (ICTSD, 2009). Although the next steps at the intergovernmental level remain to be determined, the fundamental IP-related issues raised by the seizures are worthy of attention because of their long-term implications for the international economic system, economic development and public welfare. Implementation of the EU IP Border Regulation represents a challenge to fundamental ideas about the way the international intellectual property system operates. The Paris Convention on the Protection of Industrial Property incorporates ‘independence’ of patents as a core principle (Abbott, Cottier and Gurry, 2007; Paris Convention, art. 4bis: Patents: Independence of Patents Obtained for the Same Invention in Different Countries). The principle is framed in terms of protecting national institutions and decision-making against intrusive determinations by foreign authorities. The principle of independence of patents preserves the sovereign authority of states to adopt and implement patent protections as they consider appropriate, within the framework of a general set of rules. Each member of the Paris Convention decides whether to grant or deny patent protection,
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