A parallel import is defined as the import of an original product purchased at a lower price in another country. These products can then be sold domestically at a cheaper price in direct competition to the manufacturer. If the products imported into Switzerland are protected by a patent, the system of exhaustion decides whether or not parallel trade is permissible under patent law.
A patent grants its owner the right to exclude others from commercially using the invention. It can prevent third parties from putting the patented product on the market, from importing it or from selling it. This right lapses as soon as the patent owner puts the patented product on the market for the first time. The “lawful acquirer” of the product can then freely determine how he or she wants to use it or whether to resell it.
If the first time the product is placed on the market occurs abroad, the domestic system of exhaustion determines whether the patent owner’s right of exclusion is exhausted and the patented product is open to parallel import without his or her consent.
The principle of unilateral regional exhaustion (i.e. without agreement of a reciprocal right) in the European Economic Area (EEA) has applied in Switzerland since 2009. This means that the right of exclusion lapses as soon as the patent owner puts the patented product on the market in an EEA country. In such a case, it may also be imported in parallel into Switzerland from the EEA without the owner’s permission. Contrarily, if it is first put on the market in a country outside of the EEA, parallel importation is not allowed unless there is corresponding consent.
For medicines, the principle of national exhaustion still applies. This means that the patent owner loses his or her right of exclusion only if the patented medicine is put on the market in Switzerland. If, in contrast, the first time the medicine is placed on the market occurs abroad, a parallel import into Switzerland requires the permission of the rights holder.
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