Keywords
Summary

Keywords

1 . FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - PATENT RIGHT - PRODUCT MARKETED IN A MEMBER STATE BY THE PATENT PROPRIETOR OR WITH HIS CONSENT - IMPORTATION INTO ANOTHER MEMBER STATE - PROPRIETOR ' S RIGHT TO PREVENT IMPORTATION - NONE

( EEC TREATY , ARTS 30 AND 36 )

2 . FREE MOVEMENT OF GOODS - INDUSTRIAL AND COMMERCIAL PROPERTY - PATENT RIGHT - PRODUCT PROTECTED IN SEVERAL MEMBER STATES UNDER PARALLEL PATENTS - PRODUCT MANUFACTURED IN A MEMBER STATE BY THE HOLDER OF A COMPULSORY LICENCE AND MARKETED IN ANOTHER MEMBER STATE - PATENT PROPRIETOR ' S RIGHT TO PREVENT MARKETING - NECESSARY PROTECTION OF THE SUBSTANCE OF THE PATENT RIGHT - PERMISSIBILITY

( EEC TREATY , ARTS 30 AND 36 )

Summary

1 . ARTICLES 30 AND 36 OF THE EEC TREATY PRECLUDE THE APPLICATION OF NATIONAL PROVISIONS WHICH ENABLE A PATENT PROPRIETOR TO PREVENT THE IMPORTATION AND MARKETING OF A PRODUCT WHICH HAS BEEN LAWFULLY MARKETED IN ANOTHER MEMBER STATE BY THE PATENT PROPRIETOR HIMSELF , WITH HIS CONSENT , OR BY A PERSON ECONOMICALLY OR LEGALLY DEPENDENT ON HIM .

2.ARTICLES 30 AND 36 OF THE EEC TREATY DO NOT PRECLUDE THE APPLICATION OF LEGAL PROVISIONS OF A MEMBER STATE WHICH GIVE A PATENT PROPRIETOR THE RIGHT TO PREVENT THE MARKETING IN THAT STATE OF A PRODUCT WHICH HAS BEEN MANUFACTURED IN ANOTHER MEMBER STATE BY THE HOLDER OF A COMPULSORY LICENCE GRANTED IN RESPECT OF A PARALLEL PATENT HELD BY THE SAME PROPRIETOR . IN THAT RESPECT , IT MAKES NO DIFFERENCE WHETHER A PROHIBITION ON EXPORTATION IS ATTACHED TO THE COMPULSORY LICENCE , WHETHER THAT LICENCE FIXES ROYALTIES PAYABLE TO THE PATENTEE OR WHETHER THE PATENTEE HAS ACCEPTED OR REFUSED SUCH ROYALTIES .

WHERE A COMPULSORY LICENCE IS GRANTED TO A THIRD PARTY THE PATENT PROPRIETOR IS DEPRIVED OF HIS RIGHT TO DETERMINE FREELY THE CONDITIONS UNDER WHICH HE MARKETS HIS PRODUCT . THE SUBSTANCE OF A PATENT RIGHT LIES ESSENTIALLY IN ACCORDING THE INVENTOR AN EXCLUSIVE RIGHT OF FIRST PLACING THE PRODUCT ON THE MARKET SO AS TO ALLOW HIM TO OBTAIN THE REWARD FOR HIS CREATIVE EFFORT . IT IS THEREFORE NECESSARY TO ALLOW THE PATENT PROPRIETOR TO PREVENT THE IMPORTATION AND MARKETING OF PRODUCTS MANUFACTURED UNDER A COMPULSORY LICENCE IN ORDER TO PROTECT THE SUBSTANCE OF HIS EXCLUSIVE RIGHTS UNDER HIS PATENT .