[Ip-health] On meds parallel trade: PC amicus in Lexmark; U.S. Supreme Court litigation

Peter Maybarduk pmaybarduk at citizen.org
Wed Jan 25 12:08:08 PST 2017

Public Citizen submitted an amicus curiae brief with the U.S. Supreme Court this week in the case of Impression Products v. Lexmark International: http://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=1033

The pharmaceutical industry has submitted arguments that a rule of international patent exhaustion (which, among other things, can facilitate cross-border trade in pharmaceuticals) would be harmful to access to medicines in lower-income countries. We counter this claim, arguing that parallel importation is a cost-saving and, sometimes, a lifesaving policy tool in cases of industry price abuse. We also argue that patent rules and patent holder interests should not be treated as proxies for health or pharmaceutical policy, which can be better tailored to preserve tiered pricing where helpful. 

This case began as a patent dispute between Lexmark, which manufactures patented printer-ink cartridges, and Impression Products, which buys, reconditions, and sells used cartridges. Lexmark contends that this activity infringes its patents, because the cartridges are sold with a condition on their use prohibiting buyers from selling used cartridges for reuse. 

The Supreme Court accepted the case to decide two issues: whether patent law can be used to enforce conditions on the sale of patented articles given the longstanding principle that the first sale of a patented item exhausts patent rights, and whether first sales in foreign countries exhaust U.S. patent rights.

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