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Patent Exhaustion and International Trade Regulation
Series: - World Trade Institute Advanced Studies, Volume: 13
Author:
This book dives into the legal and economic rationale of patent exhaustion, studying its evolution from the beginning in Germany, UK and USA, to Japan and 10 developing countries. The author also analyses exhaustion under TRIPS, GATT, GATS and major regional agreements, including the EU, before assessing the interface of patent exhaustion with competition policy. The book also addresses public policy concerns of Least developed and developing countries linked to their IPR challenges as IP users. It concludes that an appropriate exhaustion mode under relevant legal measures would protect patents while also restraining patents to become non-tariff barriers.
The open access publication of this book has been published with the support of the Swiss National Science Foundation.
The open access publication of this book has been published with the support of the Swiss National Science Foundation.
Santanu Mukherjee, M.I.L.E., Ph.D. (WTI, Bern University), is an Advocate & Accredited Mediator in India, and the Head of Ex Lege Chambers, a boutique Law Office. He specializes in IPR, International Trade Policy and Technology Laws.
Foreword
Preface
Acknowledgments
List of Figures and Table
Abbreviations and Acronyms
Introduction
Part 1
Patents and Exhaustion
1 Intellectual Property Rights and Patents: Introduction to Intellectual Property Rights
1.1 Brief History of Patents
1.2 Rationale for Patents
1.2.1 Libertarian
1.2.2 Self-expression
1.2.3 Utilitarian
1.2.4 Human Rights
1.2.5 Distributive Justice
1.2.6 Privacy
1.2.7 Egalitarian
1.3 Specific Characteristics of Intellectual Property Rights
2 Ubiquity and Exhaustion Doctrine: Ubiquity in Patents
2.1 Doctrine of Implied License
2.2 Doctrine of First Sale
2.3 Exhaustion of Patent Rights
3 Economics of Patents and Economic Rationale for Exhaustion in Relation to International Trade
3.1
3.1.1 The Economics of Patents
3.1.2 The Economic Arguments for Free Trade in Relation to Exhaustion of Patents
3.2 The Economic Reasoning for Patent Exhaustion
3.2.1 Economic Reasoning for ‘National Exhaustion’ of Patent Rights
3.2.2 Economic Reasoning for ‘International Exhaustion’ of Patent Rights
3.2.3 Economic Reasoning for ‘Regional Exhaustion’ of Patent Rights
3.2.4 Ideal Mode of Patent Exhaustion among the Three Modes
4 Evolution of Exhaustion: Patent Exhaustion in Different Jurisdictions
4.1 The United Kingdom and the Doctrine of ‘Implied License’
4.2 Patent Exhaustion in Germany and Some Countries in Continental Europe
4.3 Patent Exhaustion in the United States of America
4.4 Patent Exhaustion in Japan
4.5 Patent Exhaustion in Some Developing Countries
4.5.1 Brazil
4.5.2 China
4.5.3 India
4.5.4 South Africa
4.5.5 Indonesia
4.5.6 Malaysia
4.5.7 Singapore
4.5.8 Thailand
4.5.9 The Philippines
4.5.10 Vietnam
5 Exhaustion and Parallel Trade: Patent Exhaustion
5.1 The Effect of Patent Exhaustion on Parallel Trade
5.2 The Effect of Exhaustion of Other
ipr
s on Parallel Trade
5.2.1 Exhaustion of Trademarks
5.2.2 Exhaustion of Copyrights
5.2.3 Exhaustion of Trademarks and Copyrights in Relation to Patent Exhaustion and Effect on Parallel Trade
Part 2
Multilateral and Regional Trade Regulations and Patent Exhaustion
6
trips
Agreement: The Negotiating History of the
trips
Agreement and Patent Exhaustion
6.1 Intellectual Property Rights under the
gatt
and the Negotiating History of
trips
6.2 The Negotiating History of Exhaustion
6.3 Exhaustion under
trips
/
wto
: Analysis from the Multilateral Trade Perspective
6.3.1 Patent Exhaustion under the
trips
Agreement
7
gatt
1994 and Exhaustion
7.1 Preamble to the
gatt
1994
7.2 Article
i
– Most Favoured Nation
7.3 Article
iii
– National Treatment
7.4 Article
xx
– General Exceptions
7.5 Article
xi
: 1 – General Elimination of Quantitative Restrictions
7.6 Article
xxiv
– In Light of the Most Favoured Nation Principle
7.7 Article
xxiii
: 1 – Non-discrimination of Quantitative Restrictions
8 General Agreement on Trade in Services and Its Interface with Patent Exhaustion
8.1
gats
and Patent Exhaustion
8.2 Article
ii
and Article
xvii
in
gats
and Its Impact on Patent Exhaustion
8.3 Exceptions to Most Favoured Nation and National Treatment and Its Impact on Patent Exhaustion under Article
v
and Article
xiv
9 Free Trade Agreements and Exhaustion: Different Regional Trade Agreements
9.1
9.1.1 Regionalism and Its Relationship with Multilateralism
9.1.2 Development of Regionalism in Different Parts of the World
9.1.3 Relation between Regionalism and Multilateralism with Reference to Articles
xiv
and
xxiv
of the
gatt
/
wto
Agreement
9.2 The European Union, European Free Trade Association, European Economic Area and Patent Exhaustion
9.3 North American Free Trade Area (
nafta
), United States Canada Mexico Agreement (
usmca
) and Patent Exhaustion
9.3.1
nafta
: Historical Perspective and Evolution
9.3.2
nafta
: Legal rules on Intellectual Property Rights and Patent Exhaustion
9.3.3
usmca
: Background and Evolution
9.4 Association of Southeast Asian Nations (
asean
) and Patent Exhaustion
9.5 Gulf Cooperation Council (
gcc
) and Patent Exhaustion
9.6 Common Market of the South (
mercosur
) and Patent Exhaustion
9.7 Comprehensive and Progressive Agreement for Trans-pacific Partnership (
cptpp
),
ipr
s and Patent Exhaustion
9.8 Comprehensive Economic and Trade Agreement (
ceta
) and Patent Exhaustion
Part 3
Policy Dimensions of Patent Exhaustion
10 Patents and Public Health: Patents and Access to Medicines – The Exhaustion Dimension
10.1 Historical Perspective of Patents, Public Health Concerns and Access to Medicines: The Indian Experience
10.2 Post-
trips
Scenario: Patents, Public Health Concerns and Access to Medicines
10.3 Public Policy Implications of Public Health Crisis Leading to
trips
Amendment
10.4
trips
Amendment: Patent Exhaustion Enabling Parallel Trade
11 Exhaustion and Competition Policy: Patent Exhaustion and Its Relation with Competition Law and Policy
11.1 Competition Law and Policy in the Multilateral Trading System
11.2 Competition Law/Policy and
ipr
s within the
gatt/wto
Regime
11.3 Competition Law/Policy
trips
and Parallel Imports
Conclusion and Final Remarks
12 Conclusion and Recommendation: Adoption of International Exhaustion of Patents, Globally
12.1. Purpose of Patent Protection, Ubiquity and Need for Balance
12.2 Patent Exhaustion in Different Countries: Need for Uniform International Exhaustion
12.3 Patent Exhaustion and Multilateral Trade: Need for Removal of Non-Tariff Barriers
12.4 International Exhaustion of Patents – Balancing
ipr
Protection and Consumer Welfare through Competition Policy
12.5 Addressing Parallel Imports under State Control and Restraints on Intellectual Property Rights
12.5.1 Restraint on Parallel Imports Due to Non-existence of Patents in Country of Export or Patents being Subject to Compulsory Licenses and Other Controls
12.5.2 Restraint on Parallel Imports due to Inferior Quality of Products
12.6 Amendment of the
trips
Agreement: Proposed Draft Amended Text for Article 6,
trips
Bibliography
Legal Texts and
wto
Documents
List of Cases
Websites
Index
Preface
Acknowledgments
List of Figures and Table
Abbreviations and Acronyms
Introduction
Part 1
Patents and Exhaustion
1 Intellectual Property Rights and Patents: Introduction to Intellectual Property Rights
1.1 Brief History of Patents
1.2 Rationale for Patents
1.2.1 Libertarian
1.2.2 Self-expression
1.2.3 Utilitarian
1.2.4 Human Rights
1.2.5 Distributive Justice
1.2.6 Privacy
1.2.7 Egalitarian
1.3 Specific Characteristics of Intellectual Property Rights
2 Ubiquity and Exhaustion Doctrine: Ubiquity in Patents
2.1 Doctrine of Implied License
2.2 Doctrine of First Sale
2.3 Exhaustion of Patent Rights
3 Economics of Patents and Economic Rationale for Exhaustion in Relation to International Trade
3.1
3.1.1 The Economics of Patents
3.1.2 The Economic Arguments for Free Trade in Relation to Exhaustion of Patents
3.2 The Economic Reasoning for Patent Exhaustion
3.2.1 Economic Reasoning for ‘National Exhaustion’ of Patent Rights
3.2.2 Economic Reasoning for ‘International Exhaustion’ of Patent Rights
3.2.3 Economic Reasoning for ‘Regional Exhaustion’ of Patent Rights
3.2.4 Ideal Mode of Patent Exhaustion among the Three Modes
4 Evolution of Exhaustion: Patent Exhaustion in Different Jurisdictions
4.1 The United Kingdom and the Doctrine of ‘Implied License’
4.2 Patent Exhaustion in Germany and Some Countries in Continental Europe
4.3 Patent Exhaustion in the United States of America
4.4 Patent Exhaustion in Japan
4.5 Patent Exhaustion in Some Developing Countries
4.5.1 Brazil
4.5.2 China
4.5.3 India
4.5.4 South Africa
4.5.5 Indonesia
4.5.6 Malaysia
4.5.7 Singapore
4.5.8 Thailand
4.5.9 The Philippines
4.5.10 Vietnam
5 Exhaustion and Parallel Trade: Patent Exhaustion
5.1 The Effect of Patent Exhaustion on Parallel Trade
5.2 The Effect of Exhaustion of Other
5.2.1 Exhaustion of Trademarks
5.2.2 Exhaustion of Copyrights
5.2.3 Exhaustion of Trademarks and Copyrights in Relation to Patent Exhaustion and Effect on Parallel Trade
Part 2
Multilateral and Regional Trade Regulations and Patent Exhaustion
6
6.1 Intellectual Property Rights under the
6.2 The Negotiating History of Exhaustion
6.3 Exhaustion under
6.3.1 Patent Exhaustion under the
7
7.1 Preamble to the
7.2 Article
7.3 Article
7.4 Article
7.5 Article
7.6 Article
7.7 Article
8 General Agreement on Trade in Services and Its Interface with Patent Exhaustion
8.1
8.2 Article
8.3 Exceptions to Most Favoured Nation and National Treatment and Its Impact on Patent Exhaustion under Article
9 Free Trade Agreements and Exhaustion: Different Regional Trade Agreements
9.1
9.1.1 Regionalism and Its Relationship with Multilateralism
9.1.2 Development of Regionalism in Different Parts of the World
9.1.3 Relation between Regionalism and Multilateralism with Reference to Articles
9.2 The European Union, European Free Trade Association, European Economic Area and Patent Exhaustion
9.3 North American Free Trade Area (
9.3.1
9.3.2
9.3.3
9.4 Association of Southeast Asian Nations (
9.5 Gulf Cooperation Council (
9.6 Common Market of the South (
9.7 Comprehensive and Progressive Agreement for Trans-pacific Partnership (
9.8 Comprehensive Economic and Trade Agreement (
Part 3
Policy Dimensions of Patent Exhaustion
10 Patents and Public Health: Patents and Access to Medicines – The Exhaustion Dimension
10.1 Historical Perspective of Patents, Public Health Concerns and Access to Medicines: The Indian Experience
10.2 Post-
10.3 Public Policy Implications of Public Health Crisis Leading to
10.4
11 Exhaustion and Competition Policy: Patent Exhaustion and Its Relation with Competition Law and Policy
11.1 Competition Law and Policy in the Multilateral Trading System
11.2 Competition Law/Policy and
11.3 Competition Law/Policy
Conclusion and Final Remarks
12 Conclusion and Recommendation: Adoption of International Exhaustion of Patents, Globally
12.1. Purpose of Patent Protection, Ubiquity and Need for Balance
12.2 Patent Exhaustion in Different Countries: Need for Uniform International Exhaustion
12.3 Patent Exhaustion and Multilateral Trade: Need for Removal of Non-Tariff Barriers
12.4 International Exhaustion of Patents – Balancing
12.5 Addressing Parallel Imports under State Control and Restraints on Intellectual Property Rights
12.5.1 Restraint on Parallel Imports Due to Non-existence of Patents in Country of Export or Patents being Subject to Compulsory Licenses and Other Controls
12.5.2 Restraint on Parallel Imports due to Inferior Quality of Products
12.6 Amendment of the
Bibliography
Legal Texts and
List of Cases
Websites
Index
An essential handbook for legal practitioners, students and Universities teaching IPR, WTO courses as well as policy enthusiasts interested in patent & WTO laws for trade and development.