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Access to Medicine in the Global EconomyInternational Agreements on Patents and Related Rights$
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Cynthia Ho

Print publication date: 2011

Print ISBN-13: 9780195390124

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780195390124.001.0001

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Suspensions of In-Transit “Generic” Drugs: A Case Study of Competing Perspectives

Suspensions of In-Transit “Generic” Drugs: A Case Study of Competing Perspectives

Chapter:
(p.285) 10 Suspensions of In-Transit “Generic” Drugs: A Case Study of Competing Perspectives
Source:
Access to Medicine in the Global Economy
Author(s):

Cynthia M. Ho (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195390124.003.0011

This chapter analyzes an important current controversy under TRIPS while simultaneously providing another opportunity to show the impact and influence of competing patent perspectives. In particular, it analyzes a controversial EU Regulation that permits customs officials to detain goods that infringe local patent laws—even though those goods are not intended for local consumption. Pursuant to the Regulation, the chapter gives an example of a situation where goods have been detained at a Netherlands airport en route to another country. The detentions are permissible under the EU Regulation because in-transit goods are considered to infringe patent rights in the Netherlands. These detentions have resulted in delays of goods that violate no patent rights in either the country of origin or destination. The issue poses difficult interpretive TRIPS questions, yet discussion to date has predominantly suggested the EU law is either clearly consistent or inconsistent with TRIPS. The chapter aims to explain why the TRIPS issue is a nuanced one that is far less clear than most suggest. In addition, it describes how the competing patent perspectives have promoted skewed interpretations of the law and facts.

Keywords:   TRIPS, patent law, patent infringement, Netherlands, EU Regulation, in-transit goods

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