Does India need to harmonize the law of patent exhaustion and parallel imports?

Abstract

The amendment of patent law of India in 2005 to fulfill her international obligation under the TRIPS Agreement (World Trade Organization Agreement on Trade Related Intellectual Property Rights) was an outcome of an attempt to balance the competing interests of several stakeholders, including indigenous pharmaceutical companies, multi-national pharmaceutical companies, non-governmental organizations and civil society groups concerned with access to affordable drugs. The adverse consequence of this delicate balancing is introduction of some provisions in the Act whose compatibility with the TRIPS Agreement is questionable, and which therefore are prone to litigations. Section 107A(b) of the amended patent law dealing with parallel imports is one such provision, which, if interpreted word for word could have significant connotations for the rights of a patent owner. This article aims to examine the inconsistencies intrinsic in Section 107A(b) and discusses the divergences in the Indian patent law associated with the doctrine of exhaustion and parallel imports. This article also proposes legal amendments with a view to eliminate inconsistencies intrinsic in the section and enlarge the ambit of the exhaustion principle conceptualized therein, while concurrently remaining compliant with the TRIPS Agreement.