Page 32 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

provisions or case law, namely Cambodia, Malaysia, Vietnam, and Singapore; countries
that adopt a system of national exhaustion based on legislative provisions, such as

Indonesia and the Philippines; countries that do not have a specific rule on exhaustion,
namely Brunei, Lao PDR, and Thailand (or in the case of Myanmar, no patent law is

enacted in the country at this time). In addition, a fourth sub-group can be identified
based on the treatment of pharmaceutical products, namely Singapore, Indonesia, and
the Philippines. Singapore follows a de facto system of national exhaustion if the resale
is prohibited by contract, while Indonesia and the Philippines adopt international

exhaustion.

In particular, in Cambodia, Article 44 of the Law on the Patents, Utility Model
Certificates and Industrial Designs states patent rights do not extend to acts related to
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“articles which have been put on the market in the Kingdom of Cambodia or outside

the Kingdom of Cambodia by the owner of the patent or with his consent…” To date,
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no case has been decided regarding parallel imports into Cambodia. Likewise, Section
58A of the Patents Act of Malaysia provides it is not an infringement “to import, offer
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for sale, sell or use” any of the following: “any patented product” or “any product
obtained directly by means of the patented process or to which the patented process has
been applied, which is produced by, or with the consent, conditional or otherwise, of

the owner of the patent or his licensee”. The provision additionally clarifies that
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“patent” “includes a patent granted in any country outside Malaysia in respect of the
same or essentially the same invention as that for which a patent is granted under this

Act.” This provision was first introduced into the Malaysian Patents Act by the Patents
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(Amendment) Act of 2000, prompted by concerns regarding the AIDS/HIV pandemic
in the late 1990s and the related need to access affordable medicines. Similarly,
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60 Law on Patents, Utility Models and Industrial Designs (2003) (Cambodia).
61 Id. at art. 44.
62 Patents Act 1983, as amended by the Patents (Amendment) Act 2006 (Malaysia).
63 Id. at § 58A.
64 Id.
65 See John Chong, Exhaustion and Parallel Imports in Malaysia, in ParaLLeL ImPorts IN asIa 133-35
(Christopher Heath ed., 2004).

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