ABSTRACT
The TRIPS exhaustion regime is considered one of the major flexibilities of the TRIPS Agreement and it can, in certain circumstances, play a significant role in enhancing access to medicines at rates lower than the manufacturer’s price. The relevance of the exhaustion principle in the access to medicines context is, however, bound to depend on a number of factors including the exhaustion regime available in the country using it, the manufacturer’s differential pricing scheme, trade barriers and import duties, amongst others. The chapter examines the legal framework for exhaustion of rights in public international law and how it relates to parallel importation (otherwise known as parallel trade). The chapter highlights the emerging conflicts between the concept of parallel importation and the differential pricing phenomenon as well as whether competition policy would be a more effective option than parallel trade. The significance of parallel trade in pharmaceutical products to the access to medicines challenge is considered with particular focus on the parallel importation of goods made pursuant to a compulsory licence. The chapter explores the significance of parallel trade to free trade in Africa.
