Free Trade of Pharmaceutical Products: The Limits of Intellectual Property Enforcement at the Border

Abstract

Detentions of generic medicines in-transit attracted international attention in view of their implications for efforts to promote greater access to medicines. The controversy created by these detentions revolves around two main interrelated topics: first, the adoption of new intellectual property IP enforcement rules affecting third countries’ markets; second, the enforcement of intellectual property rights at the border. Tensions between the principles of free trade and intellectual property protection are not new. All intellectual property international treaties and national intellectual property laws enshrine or implicitly recognize two fundamental and interlinked principles of intellectual property law, namely territoriality and independence. Products protected by intellectual property rights are moreover covered by the liberty of transit mandated in GATT Article V. However, this article permits the control of in-transit goods under the condition to not subject them to “unnecessary delays and restrictions”. Whether some national and regional border enforcement regimes are compatible with these principles and conditions is disputable.