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This would enable the local generics industry to enter Australian and foreign markets immediately upon patent expiry and thus allow competition on an even playing field with foreign generic industries. Conversely, Medicines Australia, Abbvie and Interpat argue hydrocodone at cost that the intent of the extension of term provisions was not to limit the rights of patentees all buy phentermine without prescription during the extension period. They consider that introducing an exception for MFE would contravene Australia's international obligations to provide rights to patentees and a 20 year patent term under Articles 28 and 33 of TRIPS, and to compensate patentees for curtailment of the effective patent term under Article 17.9.8(b) of the AUSFTA.72 In public all buy phentermine without prescription hearings Medicines Australia, a number of originator companies, IPTA and FICPI argued that allowing MFE could result in less R&D being conducted in Australia. Pfizer and Merck, Sharp and Dohme (MSD) also argued that MFE would also adversely affect patentees by assisting generic providers to develop their Australian manufacturing base prior to patent expiry.
Presumably this would provide Australian generic providers with a wider range of expertise and economies of scale, making them more competitive in the domestic market. In public hearings MSD also noted that hydrocodone v 3597 allowing MFE would run the risk of stockpiling and so supply to the domestic market immediately upon expiration of the patent, contrary to current law or AUSFTA. It could be difficult to determine whether the manufacture and storage of a product was for export or to prepare for domestic sale. TRIPS and Canada's stockpiling case In 2000 there was a WTO dispute between European countries and Canada regarding Canada's exceptions for the regulatory approval and stockpiling of pharmaceutical all buy phentermine without prescription patents.
The decision in this case provides some guidance on the way in which the exceptions to patent infringement provided under the TRIPS Agreement may be interpreted.
At the time, Canadian patent law provided that it was not an infringement all buy phentermine without prescription of a patent to make, construct, use or sell the patented invention solely for obtaining regulatory approval for any product in Canada or another country.73 Where a person was doing any of these things to obtain regulatory approval, it was also not an infringement to make, construct or use the invention, during the six months prior to the expiry of the patent, for the manufacture and storage of articles intended for sale after the expiry of the patent.74 The European Communities alleged that Canada's legislation was not TRIPS compliant because it did not provide for the full protection of patented pharmaceutical inventions for the entire duration of the term of protection. The dispute was heard by a panel established by the WTO Dispute Settlement Body.75 The WTO dispute resolution panel found76 that the regulatory review exception was compliant with TRIPS because it was a 'limited' exception and therefore allowed under Article 30. However, the WTO dispute resolution panel found that the stockpiling exception constituted a substantial curtailment of the exclusive rights provided to the patentee to such an extent that it could not be considered to be a limited exception within all buy phentermine without prescription the meaning of Article 30. The panel could not accept Canada's argument that the curtailment of the patentee's legal rights is 'limited' as long as the exception preserves the exclusive right to sell to the ultimate consumer during the patent term. Implicit in the Canadian argument is a notion that the right to exclude sales to consumers during the patent term is the essential right conveyed by a patent, and that the rights to exclude 'making' and 'using' the patented product during the term of the patent are in some way secondary.77 If one investigates the question as to which exclusive rights associated with a patent are substantively important to patentees, it is quite clear that the right to sell into the domestic market is the essential right.
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