Page 34 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

pharmaceutical products. Specifically, the 2016 Patent Law of Indonesia grants patent
72
owners the exclusive right to prohibit other parties, inter alia, from “importing” the

patent products or the products derived from the patented products. Third, parties may
73
still import these products for the purpose of “research, experiment, or analysis” when

the use would not prejudice the interest of patent holders and is non-commercial. More
74
generally, Article 167 provides the general prohibition against imports does not apply
to imports of patented pharmaceuticals that were lawfully marketed outside Indonesia.
75
This exception is based directly on the need to “to ensure a reasonable price and satisfy
the justice of a pharmaceutical product is necessary for human health.” Similarly, the
76
Philippine Intellectual Property Code grants the patentee exclusive rights in Section
77
71, including the right of “selling or importing” the patented product or products
obtained directly or indirectly from a patented process. Moreover, Section 72(1) states
78
patent owners cannot prevent third parties, without authorization, from “using a patented
product which has been put on the market in the Philippines by the owner of the product,
or with his express consent.” Because of these provisions, this principle does not apply
79
in the case of pharmaceuticals. In particular, Section 72(1) clarifies that, regarding
“drugs and medicines” “the limitation on patent rights shall apply after a drug or medicine
has been introduced in the Philippines or anywhere else in the world by the patent owner,

or by any party authorized to use the invention.” Moreover, the provision continues,
“the right to import the drugs and medicines contemplated in this section shall be

available to any government agency or any private third party.” 80

72 Law of the Republic of Indonesia No. 13 of July 28, 2016, on Patents (Indonesia).
73 Id. at art. 19(1)-(2) and art. 160.
74 Id. at art. 19(3).
75 Id. at art. 167.
76 Id. at Explanation to art. 167.
77 Intellectual Property Code of the Philippines (Republic Act No. 8293) (1997), as amended by the
Republic Act No. 10372 (2013) (Philippines).
78 Id. at § 72.
79 Id. at § 72.1.
80 Id.

32