Importing the product = exploitation
- Introduction.
When analyzing the validity element of the three tier analysis that inspired the TRIPS PLUS ULTRA proposal (the other two elements are its justice and its effectiveness), we´ve said that the TRIPS Agreement sets a global standard, and that this global standard admits exceptions and limitations. We´ve also said that the relevance of the limitations must be measure in comparison with the global heart of the patent; what was set to be its heart is by far more relevant than what was left out, globally).
When analyzing how those global standards get implemented, we also said that “as for patents, the minimums parameters of the agreement are either impossible (conceptually there is no such possibility) or hard (because of practical elements) to exceed”.
Up next you will find quotes from “A global solution for the protection of inventions” (pp. 58, 62) that explains one of those global standards: importation of the product = exploitation.
2. The standard: Importation of the product equals exploitation.
“The TRIPS Agreement also determines as a principle that admits no exception the non-discrimination in regard to the exercise of the rights of the patent holder from the fact that the products are imported or produced in the country where the patent is granted. This principle establishes the non-discrimination among imported and locally produced products. This principle conceptually does not allow the signatory countries to establish any additional advantage, and it is also a worldwide-harmonized provision (not just a minimum). This provision, which is part of the center core or heart of patents worldwide, was severely criticized in its time. Some people still find this principle pernicious.”
“The Belgians Remiche and Desterbecq forcefully criticized this principle. ‘Has the patent system not been perverted, transforming the obligation of exploiting to the right to import in a monopolized manner? And is not this perverse effect that causes the system to be ineffective in developing countries? What is the actual compensation for these countries from granting a patent to a foreigner when that patent is not exploited locally?’ (Remiche and Desterbecq 1997, 257)”.
“The result of the application of this provision is contrary to the goal of technology transfer. Nevertheless, it is consistent with free trade promoted by WTO. Technology transfer—which is a TRIPS principle on its own—has been up until now a merely declaratory objective constant in the TRIPS Agreement. This book argues that these two goals or principles (technology transfer and non-discrimination among imported and locally produced products), while applying the proposal that this study contains, can stop being in opposition and even complement each other […]”.