Chinese Legislation and Theoretical Basis for Patent Parallel Import: Consideration of Parallel Import of Pharmaceutical Patents During the Pandemic

Abstract

The current Chinese Patent Law permits parallel import, but its theoretical basis is disputed. Neither theprinciple of domestic exhaustion of rights nor the principle of international exhaustion of rights can be used as thetheoretical basis to support parallel import. Chinese legislation can set aside the traditional dispute between the principleof exhaustion of rights and the principle of territoriality, support parallel import in principle, and make exceptions in whichparallel import can be prohibited if the parallel importer violates the contract or authorization agreement or conductsunfair competition to damage the legitimate rights and interests of the patentee or the consumer. The primary objective oflegislation on parallel imports of pharmaceutical patented products should be better protection of public health. Permittingparallel import of patented medicine is of utmost significance to decrease the price of patented drugs and expand theaccessibility of drugs. However, we should also prevent the import of fake and inferior goods. China should be cautiousabout permitting the parallel import of “repackaged” pharmaceutical patented products in legislation and law enforcement.Regarding administrative enforcement, the customs should set up special supervision authorities for patent import andexport, and standardize the enforcement procedure for parallel import.