IP Disputes in Medicine

Friday, November 10, 2006

Noah on GATT Article 24, and goods in transit

by James Packard Love

Ben Krohmal has posted a blog about a presentation by Noah Novogrodsky at a CPTech brown bag lunch event. Noah gave some background on the Canadian C9 problems, and on a CL effort in Ghana for HIV drugs. The novel part of Noah's presentation concerned his assertion that Article 24 of the 1947 Gatt could be somehow used to permit cross-border trade in medicines that one country had obtained or manufactured under a compulsory license. Noah seemed to be implying that the TRIPS rules would somehow not apply, but it was not clear why. Does anyone have any thoughts on this?

About two weeks ago Brook Baker from Health Gap gave a talk in Trinidad, where he mentioned in passing something about exceptions to patent rights for goods in transit. This is something that would be worth thinking about more. Goods in transit have a special status in the Paris convention, and also in the TRIPS, as indicated by the following footnote to Article 51 of the TRIPS:


Article 51: Suspension of Release by Customs Authorities

[this relates to of counterfeit trademark, pirated copyright goods, or "other infringements of intellectual property rights"]

Footnote 13: "It is understood that there shall be no obligation to apply such procedures to imports of goods put on the market in another country by or with the consent of the right holder, or to goods in transit."

Note that "goods in transit" are distinct from goods put on the market "by or with the consent of the right holder."


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