An Analysis Of Doctrine Of Exhaustion Of Rights And Doctrine Of Parallel Imports

An Analysis Of Doctrine Of Exhaustion Of Rights And Doctrine Of Parallel Imports In Relation To Patents

Divik Silawat, Gujarat National Law University

ABSTRACT

Intellectual Property law comprises of trademarks, copyrights and patents and is essentially aimed at the protection of intellectual property. In this regard, patents acquire special significance, as a patent is a monopoly right granted to a person who has invented a new product or a new process for making a product. This includes the exclusive right to manufacture for a limited period, the new product invented or according to the new process of manufacture.1 Once the patent has expired, the product or invention is free to be manufactured by any member of the public.

It is important to consider the fact that the owner of a patent can sell his rights or grant licences to others who may exploit the patent. A patent is also essentially a statutory creation. As a result, it is restricted by territorial limits and a patent granted in one country cannot be enforced in another. These considerations play an important part because in an increasingly globalized world where physical or political boundaries no longer stand in the way of trade and commerce, new inventions and products find markets in several countries simultaneously. In such a situation, does the patent holder still obtain royalties for the sale of his product? Does the territorial nature of patents not effectively strip him of any rights over his invention being sold in other countries? Does it not seem unfair that in such circumstances, the patent holder has no control over his invention? These questions are pertinent to the study taken up in this article and have an impact on the doctrines of exhaustion and parallel imports.

In this article, we shall study the concepts of exhaustion and parallel imports and how they have been utilized in the European Union, U.S.A. and Japan and India. The author shall then attempt to draw his conclusions regarding the advantages of these doctrines and whether they actually have a positive impact on intellectual property law. The research paper addresses the basic ambiguities in the laws of parallel imports in India, U.S.A., the European Union and Japan.