An article recently posted on IP Watch provokes a rather interesting discussion regarding the way IP rights have been enforced on goods that are in transit. Also relevant to the discussion are the previous posts from the CAS-IP blog:
a) https://casipblog.wordpress.com/2009/02/10/ip-law-enforcement-in-eu-trips-up-shipment-of-generic-drug-from-india-to-brazil/; and
Some would also perhaps remember we had very similar events in agriculture on this, although not entirely the same: http://www.guardian.co.uk/science/2006/feb/22/gm.argentina
Monsanto, in the above case, tried to sue importers of Argentinean soy in the EU but was unsuccessful. The growth of cases in the health sector now seems to indicate that generic drugs could be seized while on transit in the EU on the grounds of (potential) infringement of IP rights in the EU when the latter is not the final destination of those products. This is very disturbing indeed.
One could argue that this amounts to enlarging the ‘territorial’ nature of IP rights, especially when no such rights exist in the country of final destination. One can also imagine this could have implications for developing countries’ “freedom to operate”.
There is another point in the IP Watch article that I am unclear of as well. According to Médecins Sans Frontières (MSF), the previous EU law seems to focus mainly on trademark issues (counterfeiting and piracy) instead of being all encompassing to include also patents. I am not sure what the rationale is for the previous EU legislation, limited to only stopping counterfeit and pirated goods. Should there be a difference and if so, why? Perhaps an expert reader out there would be able to help me on this point and share some further comments on this news?
Post written by Guat Hong Teh, Legal Specialist for CAS-IP