IP News

SC Decriminalizes Private Parallel Importation of Drugs

May 12, 2009

In a 13-page decision penned by Associate Justice Dante O. Tinga, the Supreme Court’s Second Division unanimously ruled in favor of local proprietorship Roma Drug. The SC directed that Roma Drug may not be prevented from importing drugs patented by international pharmaceutical firm GlaxoSmithKline (GSK.)

Charged with violating the Special Law on Counterfeit Drugs (SLCD) for its parallel importation of GSK’s patented drugs, Roma Drug therefore contested the validity of the disputed SLCD provisions. In its Petition to the SC, Roma Drug argued that the SLCD contravenes the equal protection clause, as well as the state guarantees on the people’s right to health.

The SC, however, declined to rule on the issue of constitutionality. In its decision, the SC explained that the issue has been rendered moot and academic by the passage of Republic Act No. 9502, otherwise known as the “Universally Accessible Cheaper and Quality Medicines Act of 2008.”

The SC confirmed that R.A. 9502 expressly amended the Intellectual Property Code, and by implication, repealed the disputed SLCD provisions. The SC clarified that R.A. 9502 clearly affords private third parties the unqualified right to import or possess “unregistered imported drugs,” viz.,:

Sec. 72. Limitations of Patent Rights. – The owner of a patent has no right to prevent third parties from performing, without his authorization, the acts referred to in Section 71 hereof in the following circumstances:

72.1 . Using a patented product which has been put on the market in the Philippines by the owner of the product, or with his express consent, insofar as such use is performed after that product has been so put on the said market:

Provided, that with regard to drugs or medicines, the limitation on patent rights shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention;

Provided further, that the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party.

The decision, in its criticism of the SLCD, observed that “[a]s written, the law makes criminal any person who imports an unregistered drug regardless of the purpose, even if the medicine can spell life or death for someone in the Philippines.” It further notes that the SLCD “deprives Filipinos the right to choose a less expensive regime for their health care by denying them a plausible and safe means of purchasing medicine at a cheaper cost.”

Justice Tinga, who retired this 11 May 2009, lauds the legislature for finally passing the Cheaper Medicines Act. RA 9502, he concludes, effectively repealed the contested SLCD prohibition on parallel importation. In closing, J. Tinga reminds that the defunct SLCD prohibition gave rise to ‘absurd’ situations, “extending to implications that deny the basic decencies of humanity.”

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