Parallel Imports and Patents: The Merck/Glaxo case which concerns imports from Spain and Portugal.

United Kingdom


This case further clarifies the position of imports from Spain and Portugal after the end of the 10 year transition period following the accession of Spain and Portugal to the European Community.

The European Court of First Instance ("CFI") rejected an application by Merck, Organon and Glaxo-Wellcome to annul European Commission decisions preventing member states taking measures to allow the use of patents to prevent pharmaceutical products from Spain being imported into those states.

It is now clear that all pharmaceutical patented products marketed in Spain or Portugal are subject to the exhaustion of rights doctrine as regards imports into other member states.
However, efforts continue to prevent parallel imports from countries where goods are sold to national health authorities at a relatively low, government imposed price. The tide does show some small signs of swinging in favour of the idea.