Intellectual Property in the WTO Volume I
Edited by Carlos M. Correa
Chapter 7: The TRIPS Agreement and Intellectual Property Rights Exhaustion
Luis Mariano Genovesi The principle of exhaustion of intellectual property rights (IPR), in its classic version, holds that once the owner of the IPR places the product protected by the IPR on the market, the IPR owner cannot use the right granted by the IPR against any person who acquires the product from the IPR owner or from another person with the consent of the IPR owner. This principle, which can also be applied to products put on the market by any authorized person – for instance, under a compulsory licence – limits the power of the IPR owner, and allows persons to use, offer to sell or sell a product embodying an IPR without fear that the IPR owner might enforce the IPR against them. At its origins during the second half of the 19th century, the exhaustion of IPR theory addressed domestic sales made by the IPR owner or its licensee.1 Nevertheless, incipient international trade allowed a third person who had acquired a product embodying the invention in a foreign country to import and sell products which were similar or identical to 1 Prominent European scholars attribute paternity of the exhaustion doctrine to Josef Kohler, or at least that he established the foundations for this theory in Germany. See Ulrich Schatz, The Exhaustion of the Patent Rights in the Common Market, 2 IIC 3 (1971); R. Singer, L’epuisement du droit du breveté et les regles allemandes, in 1ère rencontre de propriété industrielle l’epuisement du droit du breveté 17,...
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