Use vs Territorial vs Monopoly

 

If the examination of any patent includes global application citations, then technically, is there any point of considering patent territorial, & furthermore making the use of PCT, then seems more redundant, unlike Madrid in TM, as citations differ in both, wherein latter is more territorially defined.

If mere manufacturing for export is considered as use within any territory w.r.t. TM, then shouldn’t rights being implicitly enabled beyond territory (especially of branded) (UFO Contemporary Inc TM case), even in case of non-use?

And if the goods in transit (as seen in the generic drugs in transit via EU which contradicted TRIPS & WTO) could enable one to invoke patent rights, then shouldn’t the word territorial is implicitly being replaced with something more expansive? And if exceptions are made in the case of exports & is restricted to R&D or submission of information for regulatory approval (eg. S.107A, with the exceptions of S.92A restricted to compulsory licenses for export) or Bolar Provision/Exception; but then seems to be changed in TM, as use w.r.t. manufacture & export; then shouldn’t there’s a contradiction as what should define as territorial within IP?

Bayer vs Natco was a classic example of exploitation of patented products, hence use of compulsory license was justified. Pay-for-Delay was/is another tactic (despite likes of eg. ANDA filed for bioequivalence approval, or further litigations w.r.t. it), wherein generic versions were/are withheld from the market thus enabling innovator to enjoy monopoly, & stifle competition, even beyond expiration of patent, ceasing availability of lower cost alternatives in the market. There’s a saying that the manufacturing of the cost of an end product or process is ultra cheap, but R&D takes away the cash. Myth or truth or an excuse to float at the higher price, is unfathomable! And Govt. can’t interfere with the likes of compulsory license features every time.  

Seems certain definitions are too many, too expansive & too complex. What if contracting parties have a centralized data, hence, the citations, even at the examination stage at territorial level, should include from such data; rather generating at PCT or Madrid stage later, or, litigating at goods in transit, or, defining meaning of export/import with certain caveats; thus, covering every contracting territory, further making even a brand name as an inventive feature with renewals (unlike patents); but furthermore maintaining the existing territorial provisions, rules, regulations, as status-quo. This would be alike reciprocal Copyright protection viz. Berne Convention/Universal Copyright Convention etc. Thus, reducing complexity, cost, time & would force the innovators to maintain their products accessible at the minimum cost.

(comments are welcomed).

© Pranav Chaturvedi