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Belgian patent proposal -- good sentiments, poor drafting?

By Jeremy

The IPKat's linguistic limitations have been sorely exposed by his friend Kristof Kneefs, who has sent him this link to a proposal from some deputies in the Belgian Parliament to insert a new exception into the Belgian Patent Act in order to permit the export of generic pharmaceuticals to developing countries.

Right: the IPKat prays for the compulsory licensing of Belgian chocolates ...

Kristof explains in brief that the amendment would read as follows:

"Article 28: The rights confered by a patent do not extend to ... (g) the export of generic versions of patented medicinal products to developing countries that have issued compulsory licences, to developing countries where those medicinal products have not been patented, or to developing countries that make use of the flexibility provided for in Article 30 of the TRIPs agreement".

Adds Kristof:

"I think it is highly unlikely that the proposal would pass the vote of parliament, as the authors are members of a minority party.

Second, if the exception only extends to exports, wouldn't the generics still be infringing the patent by producing the medicines, even if they were destined for export? (the proposal contains no further amendments)

Third, "to developing countries that have issued compulsory licences": that's rather broad, is it not? This would imply that the export of patented pharmaceutical A to country B would be permitted if country B has issued a compulsory licence for pharmaceutical C.

Conclusion: a lot of good intentions, but poor drafting".

The IPKat wonders whether Belgium has the equivalent of the committee stage in the UK, at which wrinkled drafting can be ironed out. Merpel wonders what measures would be proposed so as to ensure that any products made for those laudable purposes would end up there and not return to the European Union for sale on a highly profitable basis.

TRIPs and pharmaceutical patents: the World Trade Organization fact sheet here

Full post as published by IPKat on April 06, 2008 (boomark / email).