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June 23, 2005

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As previously reported, Register of Copyrights Marybeth Peters testified before the House Subcommittee on Courts, the Internet and Intellectual Property and set forth a proposal to revoke the statutory compulsory license for making and distributing pho... [Read More]

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Tanea

Dear Sir,I see your point; but I think the point where we depart is on the issue of muilplte interpretations because not every interpretation is a plausible one. At this juncture, I should state that I did read your article to understand where you are coming from and while we are on the issue of opening up presumptions, there are a few conclusions in your article which I would like to open up here for discussion. If in the process, we end up concluding that international exhaustion is indeed the sole right conclusion, I don't think I am dead set against it. After all, at the end of the day, I am a consumer too.Let's start with internal page 79 of your article where you discuss Indianising The Law ; you have stated as follows: In other words, was one to interpret law as Indian law, one is faced with an absurd question: Under Indian law, can Beximco produce and distribute the drug in Bangladesh? Therefore, any reasonable construction of section 107A(b) would suggest that law as used in the section has to mean Bangladeshi law. We are on the same page until the point where we agree that Indian law cannot authorize production and sale or distribution in Bangladesh. But from there on is where the departure begins. Since you interpret the law to mean Bangladeshi law , you have had to propose an alternative interpretation to the use of patented product . What I mean is, according to you, if under the law has to be imputed the meaning under the Bangladeshi law or under the foreign law , patented product has to be interpreted as product patented in both countries so as to ensure that India does not violate its obligations under TRIPS.Now the problem with interpreting patented product as a product which is patented in both the exporting and importing countries is that there already exists a definition for patented article and patented process , both of which refer to product/process protected by a patent granted under the Indian Act. In addition to that, as was evidenced in Strix v. Maharaja, it is well-nigh plausible that two unrelated entities/individuals could hold patents in their respective jurisdictions on the same product/process. If this be the case, exhaustion of rights of the foreign patentee on first sale in such foreign country does not lead to international exhaustion because there is no exhaustion of the Indian patentee's foreign patent rights. Therefore, what flows from the above is that, to support international exhaustion, which your article emphasizes is the underlying purpose of the provision, (1) we end up going against an express definition and (2) we have not factored the possibility of the patents over the invention being held by 2 different entities in 2 jurisdictions. Also, since both these points are to be considered as having been within the knowledge of the legislature and therefore as having been taken account of by the legislature when amending Section 107A(b), it appears to be a stretch of an argument when we contend that international exhaustion is the prevailing sentiment of the provision when such a contention ignores both these points.Continued

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