Research on Parallel Import of Patented Drugs under the TRIPS Agreement
|School||Nanjing University of Technology and Engineering|
|Course||Civil and Commercial Law|
|Keywords||TRIPS Agreement Parallel import of patented pharmaceuticals Exhaustion ofrights Public Health|
Parallel imports also called "gray market import", refers to the process in which international trade in goods, an importer of goods imported to the intellectual property rights without the authorization or license, international trade practices privately imported goods from abroad has intellectual property rights. Parallel imports of patented drugs is regarded as a special case of parallel imports, can be divided according to their manifestation of parallel importation of patented medicines between countries, the parallel importation of generic drugs to the country and the country of patented medicines to third countries by the three types of parallel importation of patented medicines States. Exhaustion of rights theory and the theory of public health for the realization of the right to parallel importation of patented drugs to further provide theoretical support. Throughout the legislation and practice in various countries of the world, developed and developing countries on parallel imports of patented medicines attitudes vary.In order to alleviate the public health crisis of the developing countries, maintain steady development of the international pharmaceutical market, TRIPS Agreement by Article6,7,8and other provisions confer the legitimacy of parallel importation of patented drugs, TRIPS agreement in principle for the patent rights of pharmaceutical exhaustion doctrine adopted a non-interference, as long as the basis of compliance with the principles of national treatment and most-favored treatment on the principles of the TRIPS Agreement, member States will be able to develop their own domestic law according to their own national conditions, free from outside interference."Doha Declaration".and the "General Council" Adoption, further improve the TRIPS Agreement parallel imports of patented medicines system. At the same time, the TRIPS Agreement protocol limits the scope, subject and object of the parallel import of patented drugs.TRIPS Agreement in accordance with the principle of balancing the interests of patent medicines parallel importers conduct the necessary restrictions, Including free-riding behavior of a parallel importer of patented drugs, efficacy differences between the behavior and not the behavior of the three aspects truthfully labeled.According to Article40of the TRIPS Agreement, member States are entitled to restrict competition and abuse of patent rights of intellectual property owners to make the necessary restrictions, specifically, the agreement is a joint owner of pharmaceutical patents restrict competition and abuse of market dominance necessary restriction of competition regulation. China’s current legal norms parallel imports of patented drugs, there are many needs improvement aspects, ignore the particularity of patented drugs, the lack of restrictions on parallel importers of patented drugs, unspecified drugs patentee to limit the effectiveness of the provisions of the sales area. Under the framework of the TRIPS Agreement should therefore be on the parallel importation of patented medicines regime rules, features, advantages, a detailed analysis of the defect, Combined with relevant national legislation and practice, explore the parallel importation of patented medicines in line with the existing system of China’s national conditions.