A Manufacturing-for-Export Exception to Patent Protection : A Proposal for Exporting Violations of the TRIPS Agreement and Beyond
A recent chapter by Seuba, Genovesi, and Roffe argues that Article 30 of the TRIPS Agreement would accommodate a “manufacturing for export exception” to patent protection. The proposed exception permits the manufacturing of goods protected by patents or supplementary protection certificates without the authorization of the right holders, provided that those goods are destined for exportation to off-patent markets. Seuba et al. argue that the utility of this proposed exception derives from permitting generic exporters to compete in export markets.In this article, we demonstrate that a WTO Member implementing a proposed manufacturing-for-export exception to patent protection would violate Article 28.1 of the TRIPS Agreement, with such violation not being saved by Article 30 of the TRIPS Agreement. Among other tools of treaty interpretation, the context of the recent amendment to the TRIPS Agreement (Article 31bis) supports this conclusion, as it demonstrates WTO Members' understanding that a manufacturing-for-export exception (even as limited to pharmaceuticals) requires much more than a “flexible” interpretation of Article 30 in order to be consistent with the TRIPS Agreement. To arrive at the conclusion that Article 30 permits a manufacturing-for-export exception, Seuba et al. rely on impermissible tools of treaty interpretation that are contrary to public international law. This article also explains that a measure implementing the proposed exception may, depending on its details, potentially also violate the non-discrimination obligation in Article 27.1 of the TRIPS Agreement. Additionally, such a measure may be subject to challenges under various free trade agreements and bilateral investment treaties
Year of publication: |
2018
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Authors: | Solovy, Eric M. |
Other Persons: | Raju, Deepak (contributor) |
Publisher: |
[2018]: [S.l.] : SSRN |
Subject: | TRIPS | Immaterialgüterrechte | Intellectual property rights | Patentrecht | Patent law | Welt | World | Protektionismus | Protectionism | WTO-Recht | WTO law | Patent |
Saved in:
freely available
Extent: | 1 Online-Ressource (15 p) |
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Type of publication: | Book / Working Paper |
Language: | English |
Notes: | In: Journal of Intellectual Property Law & Practice (Oxford University Press), Volume 13, Issue 1, 1 January 2018, Pages 68-77, DOI: 10.1093/jiplp/jpx161 Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments July 18, 2017 erstellt |
Source: | ECONIS - Online Catalogue of the ZBW |
Persistent link: https://www.econbiz.de/10012933452
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