[Pharm-policy] FTAA: exceptions to and exhaustion of patent rights

[James Love]

[Article XX. Exceptions to Rights Conferred 

Members may provide limited exceptions to the exclusive rights conferred
by a patent, provided that such exceptions do not unreasonably conflict
with a normal exploitation of the patent and do not unreasonably
prejudice the legitimate interests of the patent owner, taking account
of the legitimate interests of third parties. ]

[Article XX. Exceptions

Each Party may provide limited exceptions to the exclusive rights
conferred by a patent, provided that such exceptions do not unreasonably
conflict with a normal exploitation of the patent and do not
unreasonably prejudice the legitimate interests of the patent owner,
taking account of the legitimate interests of third parties.]

[Article XX. Exceptions

1.	The rights conferred by the patent may only be enforced against acts
performed by third parties for industrial and commercial purposes. In
particular, such rights may not be enforced against acts performed
exclusively in private and for non-commercial purposes, or for
experiment, scientific research or teaching related to the object of the
patented invention. The rights conferred by the patent may not be
enforced against any person who markets, acquires or uses the patented
product or a product obtained by the patented process, after this
product has been lawfully introduced into national or international
commerce by the owner of the patent or by his or her licensees.

The patent does not confer the right to prevent the acts mentioned in
Article 5 of the Paris Convention on the protection of industrial
property.

2.	The rights conferred by a patent may not be enforced against a person
who can prove that, prior to the date of application or, if appropriate,
the date of priority of the application for the corresponding patent, he
or she was already producing the product, or using the procedure that
constitutes the invention in the country. That person shall have the
right to continue producing the product and using the procedure as he or
she had been doing, but this right may only be transferred or assigned
together with the establishment or enterprise in which such production
or use was being made.

This exception shall not apply if the person acquired knowledge of the
invention by unfair means. ]

[Article XX. Limitations and exceptions to rights conferred]

1. Members may provide limited exceptions to the exclusive rights
conferred by a patent, provided that such exceptions do not unreasonably
conflict with a normal exploitation of the patent and do not
unreasonably prejudice the legitimate interests of the patent owner,
taking account of the legitimate interests of third parties.

2. Members may stipulate in laws that the rights conferred on patent
holders shall not prevent unauthorized third parties from making, in
necessary and sufficient quantity, the patented product or the product
produced using the patented procedure and to perform all the other acts
necessary for the purposes of approving the marketing of products.
Marketing thereof shall be done following the expiry of the patent.]

[Article XX. Conferred Rights Exceptions

The Members may provide some limited exceptions to the exclusive rights
granted by a patent, on condition that they do not infringe
unjustifiably on the normal exploitation of the patent nor cause an
unjustified prejudice against the legitimate interests of the patent
holder, but consider the legitimate interests of third parties. ]

[Article XX. Exhaustion of Rights

1. This Agreement shall not affect the right of States Parties to
determine the conditions, where appropriate, under which exhaustion of
rights shall operate with regard to any products placed legitimately on
the market by the patent holder or with the authorization of the patent
holder. 

2. Members undertake to review their domestic laws within a maximum
period of 5 years from entry into force of this Agreement. counted from
the entry into force of this Agreement with a view to adopting at least
the principle of regional exhaustion vis a vis all countries signatories
to this Agreement.]

[ Article XX. Exhaustion of the right

A patent shall not confer on its owner the right to proceed against a
third party making commercial use of a product protected by the patent
once that product has been introduced into the commerce of any country
by the owner or another person authorized by, or with economic ties to
the owner of the patent.

For the purposes of the preceding paragraph, two persons shall be deemed
to have economic ties when one of the persons is able to exercise a
decisive influence on the other, either directly or indirectly, with
respect to the exploitation of the patent, or when a third party is able
to exert such influence over both persons. 

Where the patent protects biological material capable of reproduction,
the patent coverage shall not extend to the biological material that is
obtained by means of the reproduction, multiplication, or propagation of
material that was introduced into commerce, as described in the first
paragraph, provided that it was necessary to reproduce, multiply, or
propagate the material in order to fulfill the purposes for which it was
introduced into commerce, and that the material so obtained is not used
for multiplication or propagation purposes. ]

-- 
James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
http://www.cptech.org, mailto:love@cptech.org
voice: 1.202.387.8030 fax 1.202.234.5176 mobile 1.202.361.3040
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