[Ip-health] Parallel Importation Bill and the US-Australia FTA

[Kevin Outterson]

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I've written on this elsewhere; the provision was requested by the US, not =
Australia.  USTR demanded this provision with full knowledge that pending l=
egislation in Congress could call for parallel imports from Australia.  The=
 USTR could request a waiver from Australia on this point.  Put another way=
, Australia is not likely to initiate enforcement on this issue.

Kevin Outterson

Professor of Law
West Virginia University
304 293 8282  kevin.outterson@mail.wvu.edu
SSRN Author Page:  ssrn.com/author=3D340746

>>> Mike Palmedo <mike_palmedo@yahoo.com> 1/18/2007 2:20 PM >>>

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On January 10, Senators Dorgan and Snowe introduced this year's parallel im=
port bill, S. 242 - The Pharmaceutical Market Access and Drug Safety Act (t=
here's an identical bill in the House).   This bill specifies Australia as =
a country from which the US would allow parallel imports of drugs. The US-A=
ustralia FTA includes a provision meant to block parallel imports.

Sec. 4 (d)(1)(B) of the Pharmaceutical Market Access and Drug Safety Act (p=
age 91) reads*

          Exhaustion...

         ...It shall not be an act of infringement to use, offer to sell, o=
r sell within the United States or to import into the United States any pat=
ented invention under section 804 of the Federal Food Drug and Cosmetic Act=
 that was first sold abroad by or under authority of the owner or licensee =
of such patent.

Article 17.9(4) of the US-Australia FTA reads*

                Each Party shall provide that the exclusive right of the pa=
tent owner to prevent importation of a patented product, or a product that =
results from a patented process, without the consent of the patent owner sh=
all not be limited by the sale or distribution of that product outside its =
territory, at least where the patentee has placed restrictions on importati=
on by contract or other means.


Comments from folks on the list about the potential conflict here?

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