1. That Section 107A(b) does not refer to international exhaustion since it creates an exception from infringement for importation into India, of a good which is protected by a patent in India, from a person who has been duly authorized to produce and sell or distribute the patented product in India.
2. This I did on the basis that “duly authorized under the law to produce and sell or distribute the patented product” refers only to authorization under Indian law. The rationale behind this view is that if authorization to produce, sell and distribute the good were to be interpreted as an authorization under the law of any foreign country, then every manufacturer, who is authorized under such foreign law to produce, sell /distribute the good in such foreign country, could import the product into India and render the Indian patent useless.
3. Further, Indian law can authorize production, sale and distribution only within the territory of India. Therefore, it is clear that “under the law” refers to only Indian legislations.
4. I had also taken the view that such importation into India of the patented product by any person must be directly from a person who has been authorized to manufacture, sell/distribute it in India. If the patented product is procured from any other source other than the authorized person (or even bought from the authorized person and subsequently imported into India), such importation would constitute infringement of the Indian patent.
A Few More Ways of Interpreting Section 107A(b)
The above conclusions can be arrived at from another broad approach as well. The provision prior to the amendment spoke of “duly authorized by the patentee”, whereas the current amended provision reads “duly authorized under the law”.
It must be noted here that when referring to the patentee in the un-amended version, english language per force required the use of “by the patentee”. However, when the reference is to “the law”, there are two distinct legal plausibilites, namely “by the law” and “under the law”. Each of these has different legal connotations.
Further, “permitted by the law” is even more distinct from “duly authorized under the law”. If this is the case, “duly authorized under the law” has to be necessarily imputed a distinct meaning from “permitted by the law”.
Between “permitted by the law” and “duly authorized under the law”, the latter comes relatively closest in meaning to “duly authorized by the patentee”. What one is driving at is that all rights which were available solely to the patentee to restrict the scope and extent of distribution of the patented product are now available to specific Indian legislations by virtue of “under the law”.
Therefore, the primary difference between the un-amended and amended versions of the provision is that earlier the buck stopped at the patentee, whereas now, besides the patentee under the Patents Act, other Indian legislations too may authorize the production and sale/distribution of the patented product in India.
Simply put, the patentee does not stand excluded from the phrase “duly authorized under the law”, he happens to be just one of the authorities under the law who may dictate the movement of the patented product within the territory of India.
The gist of the ruminations in these last 3 posts is that international exhaustion does not appear to flow from any interpretation of Section 107A(b). In fact, one might say that territorial exhaustion does not seem to be precluded from the provision. Of course, it’s another issue that these conclusions may stand contested by those who think the conclusions are distinctly pro-patentee.
But then, where does it say that an Indian IP legislation cannot have a provision which is pro-right holder? Or that merely because it is pro-right holder, it is against public interest? Had that been the case, since a patent is pro-patentee, the grant of a patent itself should be viewed as being against public interest…
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Tags: Parallel Imports