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.
The principle of national exhaustion continues to apply if the price of goods is fixed by the state in Switzerland or in the country in which they are placed on the market. In this specific case, every parallel import requires the approval of the patent owner. This applies in particular to patented medicinal products that are reimbursed by compulsory health insurance or disability insurance.
Harmonisation and partial revision of guidelines as of 1 July 2023
Conference on Intellectual Property & Sustainability at the University of Geneva
Symposium: "Best practices in the fight against counterfeiting & piracy – NFTs not your cup of tea? Well, they should: NFTs as a new way of fighting counterfeiting and piracy"