Can someone point me to resources for determining whether and when a US resident can legally purchase prescription drugs over the internet from a Canadian distributor for personal use within the US? Does it matter whether the drug is patented in the US, but not patented in Canada? And, if illegal or a violation of patent rights, has there been any enforcement against US individuals or Canadian distributors? Finally, is there a list available of prescription drugs that are patented in the US, but available in generic form in Canada or other countries with well regulated* pharmaceutical industries?
Thanks, Dennis
dcrouch@gmail.com
You are welcome again.
Even if you are not arguing the “opposing view,” Bunk, I say again was, or short of that, some reasoning is required to support the statement that the propositions somehow “fall short.”
Again, It is quite another thing to flail about with no support for an opposing view, or to merely (nakedly) say that the proffered support falls short.
Further, I am interested in the defense of the other position.
Clear, I’m not arguing the “opposing view.” The only question in my mind is whether the proposition you (or someone offered) was a statement that a court had made. You answered that question. Thank you.
You are welcome. I think.
“but that falls short of supporting it”
I disagree. I think suppport has been clearly shown.
Further, I am interested in the defense of the other position.
It is one thing to ask what one side feels is their basis, and to disagree with that basis on reason and logic.
It is quite another to flail about with no support for an opposing view, or to merely (nakedly) say that the proffered support falls short.
I’m not getting into it, Clear. FieldTurf is not inconsistent with your proposition, but that falls short of supporting it. It is indeed possible that a court might extrapolate from FieldTurf to get to your position. All I asked was whether there was case law on that point. And you answered. Thank you.
“logical (and legal) error to say it directly supports… ”
Is that what is being said?
Or what is being said more along the lines of “read the case and apply the known reasoning.”
Where exactly is the logical error? The legal error?
Conversely, how is a case not in accordance with the original supposition being made?
Converse
Synonyms:
noun. reverse – contrary – opposite – inverse
If FieldTurf is the closest, then so be it. That’s a converse situation (not opposite) though, so I agree with Bunk to the extent that it would be a logical (and legal) error to say it directly supports the proposition that “Patent infringement includes offer for sale, (regardless of actual goods fake or not).”
“No answers on point were forthcoming. Not yet anyway.”
Not true.
Not by a long shot.
The school yard “ad hominem” amounts to a “na-na-na can’t see it” while you clench tight your eyes.
And more:
“Man, y’all have got a weak left.” Even if it is a “weak left,” in a pugilistic contest, you haven’t thrown any punches at all. You do recognize the outcome of such a contest, do you not?
“As for the “Here’s a Quarter” sock monkey,” Sonk monkey? really?
“Royal we is singular… See, e.g., Strunk & White. ” This is inapposite. By the way, the Royal We is not singular. It may refer to a singular person, but its use is still plural.
Back to the matter at hand: a case was presented (likely the best given the dearth of any cases on the subject). Reasoning was given, along with other cases that explained the likelihood of a court applying a rationale of intent of the law.
You were asked to present a counter argument with some substance.
You offered: zilch.
You now attempt to lump Leopold in with you to garner some credibility. That does not work as clearly Leopold’s comment comes before the offered cases and rationale.
The ball is in your court Bunk, I say again. Be a good chap and do something with it.
CSB writes, “But your disdain for the actual case presented belies who is the one with “school yard ad hominems.””
What ad hominem did I present?
Here’s what I (and others, e.g. Leopold Bloom) asked for. “a case where someone “offering” to sell something that was not the actual, patent-infringing good was found to be infringing at law.”
No answers on point were forthcoming. Not yet anyway.
Bunk,
Don’t trust your clothiers.
I hope the “What proposition did I make?” was rhetorical.
I think it was known that you “do not have any case to support your position, because there is no case that speak directly to that precise question.
But your disdain for the actual case presented belies who is the one with “school yard ad hominems.” You present no basis of reason for believing that a misrepresentation, where the plaintiff (and the public) have been deceived into thinking that the goods are infringing goods, would not lead a court to decide as Can tell infringement apart posted.
You should read the FieldTurf case to understand how the facts were applied. The holding turns on the fact that the item in question was known not to be an infringing item. Couple that with the reasoning in the case and others that discuss the pourpose of the law. Your naked assertion that the case points in the opposite direction is not sustainable.
As Give me reason, not patient opinion states, you provide no rationale to back up your words.
“Will Bunk provide the cases that hold for his proposition?”
What proposition did I make?
The referenced assertion was, “Patent infringement includes offer for sale, (regardless of actual goods fake or not).”
To which assertion, I asked for some case law. I do not have any case that would support that poster’s assertion, which is why I asked for some.
And instead got case law pointing the opposite direction, along with the poster’s “logical” extension of that case law.
That plus a bunch of school yard ad hominems. Man, y’all have got a weak left, is all I can say.
HAHAHAHAHA FUNNY FUNNY. 1:11 ELLEN DEGENEROUS… Generous to Ellen hahahahahahaaa.
Will Bunk provide the cases that hold for his proposition?
I think he cannot.
He is hardly a King at all when all he provides is his naked opinion. I will not wait for such a blowhard.
As I understand it, FieldTurf comes closest, although the precise question has not come before the courts. Clothes at least provides some rationale, which is missing from Bunk.
enforce does not mean stop where you come from?
Stroud does matter.. from 1971 to 1980 lots of Estate Taxes…. So you erase me there!
“And what was it you asked me to do?”
I asked nothing of you.
However, others did. You disappeared just like Malcolm does whenever he is pressed for any substance.
You will have to forgive the “sockie” comparison, as Malcolm’s habits are well established. That’s hardly “paranoia.” I would expect a scholar as yourself to choose a suitable word. Or am I mistaken about the scholar reference as well?
Oh I read it alright, but I didn’t notice any part about the border patrol supposedly stopping infringement. They have to enforce various court orders etc. and that’s it.
Nope. It weren’t me.
The whiff of paranoia is even more unmistakable. And what was it you asked me to do?
“If I had intended the royal we,”
Who cares what you intended? It is the unintended, but nonetheless actual, that is more revealing.
Sort of like IANAE’s unintended message at Mar 08, 2012 at 09:41 AM on:
link to patentlyo.com
What was that catchphrase…(another Malcolm self-referencing post)?
“Man, this blog has the dxmbest trolls.”
“FieldTurf was a correct decision.”
No one said otherwise.
…For the facts of that case and the reasoning supplied to those facts.
Take that same case and apply it to different facts (something that Real Attorneys are trained to do).
Oh wait, you are not a real attorney.
Well that explains te post by Malcolm “Bunk, I say”-Accuse-Others-of-What-You-Do Sockpuppet Mooney.
Feel free to return the goalpost to its original position at anytime.
“See, e.g., Strunk & White.”
Sounds like another “sockie” “Astonished.”
Should have known that sockpuppet was Malcolm as well because “Astonished” disappeared as soon as someone asked him to actually do something outside of pure Bxtch mode.
The real giveaway is just that Malcolm is accusing others (again) of what he does (again).
The whiff of hypocrisy is unmistakable.
“In a case where the opposite would be the fact… it is only logical to conclude that infringement would be found.”
Oh, “only logical”. Riiight. FieldTurf was a correct decision.
Like I said, still waiting (patiently) on those CAFC decision(s) where (actual) non-infringing goods were found to still have infringed under the “offer for sale” portion of the statute….
As for the “Here’s a Quarter” sock monkey, note the phrase used was plural (as in “kingS”). Royal we is singular. If I had intended the royal we, the two sentences would have been written, “We will wait patiently. We are of a patient breed.” See, e.g., Strunk & White.
“I’ll wait patiently. We Kings are”
Malcolm’s sock puppet schizoid personality deserves the royal “we.”
See also link to patentpod.com
wherein the explicit difference in product was the key to differentiating infringement and noninfringement under the “offer to sell” provision.
In a case where the opposite would be the fact pattern (fraud as to the faked goods being purported to be the genuine article), it is only logical to conclude that infringement would be found.
Start with 3D Systems v. Aarotech Labs. Inc., 160 F.3d 1373 (Fed. Cir. 1998). But see Rotec Industries, Inc. v. Mitsubishi Corp., 215 F.3d 1246 (Fed. Cir. 2000).
In context, consult
link to law.upenn.edu.pdf
and
link to andrewchin.com
and
link to papers.ssrn.com
As an aside, fraud , while not squarely addressed, would change neither the intent nor the calculus of the law. In Rotec, the emphasis on “prevent[ing] generat[ion of] interest in a potential infringing product to the commercial detriment of the rightful patentee.” Leads even patient Kings to a child’s pure view.
p 264 might be a hint in that “200 page document”
What are we supposed to see in that 200 page document?
The referenced assertion was, “Patent infringement includes offer for sale, (regardless of actual goods fake or not).”
Do you really need led down the gentle path to understand that statement is “bunk” on the face of it?
What is an infringement in the offer context is an offer to sell the patented good. Find me one case, any one case, where someone “offering” to sell something that was not the actual, patent-infringing good was found to be infringing at law.
I’ll wait patiently.
We Kings are a patient breed.
“See name.”
Ewwww, more self-referencing posts.
Most belong to the king of the sockie-trolls.
See name.
I’m curious – is there any case law at all on that point?
I assume you use “fake” in the context that they are not an infringing product, but the offerors would like you to believe otherwise.
Also see: link to usitc.gov
Question 20.
Patent infringement includes offer for sale, (regardless of actual goods fake or not).
“I’m just saying it isn’t up to border patrol to stop infringement.”
See:link to usitc.gov
esp § 210.75(b)(6) p 264
There’s probably no patent infringement involved, because the drugs you get are likely to be fake.
I’m just saying it isn’t up to border patrol to stop infringement. Iirc you typically file a lawlsuit or offer a license.
Thanks for the reminder. I’ll have to look into those cases again.
It was very interesting
I am Fatemeh Ghanbari
Attorney and university professor
Of Iran
It was very interesting
I am Fatemeh Ghanbari
Attorney and university professor
Of Iran
Interesting case today on res judicata:
ASPEX EYEWEAR v. MARCHON EYEWEAR
link to cafc.uscourts.gov
I particularly like the point about eBay. The argument was made that the failure to ask for an injunction precluded a lawsuit against later infringement by the very same products. The court noted that since eBay, injunctions are not automatic and that patent owners needed the right to sue the same infringer for later infringements even if they involved the identical product.
And, the lack of enforcement does have its equitable consequences.
A right, long unenforced against open and notorious infringement, is abandoned.
Agree with Paul here. The Internet offer for sale would seem to be an illegal act by the Canadian distributor that could be fairly easily enjoined if it was believed to be worth the money to do so.
As a practical matter you are far more likely to get caught crossing the Canadian border carryin a [now illegal in the U.S.] 5 gallon flush toilet than a small pill bottle. Nor, obviously, will you be economically worth the cost of a patent suit as an individual. But I don’t see why there is even a debatable legal issue here? “Importation” is now a specific act of direct patent infringement, and as noted above, patents are not multi-national and buying a product in Canada under Canadian patents does not give one a license under U.S. patents.
I don’t know where to find it. I do know it was a pain in the ass as of human insulin. My father-in-law had been fine on porcine insulin since the 1950s, but virtually uncontrolled on human insulin. He tried to obtain porcine insulin internationally after it became unobtainable in this country.
Dennis,
Mike S. is right about taking a look at the 2007 Fuji Photo v ITC (Jazz) case.
Might want to take a look at the Fuji v. Jazz cases, which, IIRC, hold that exhaustion of rights generally does not apply to acts outside of US jurisdiction.
I thought so too!
6, so you suggest it is the drug companies that allowing this by not listing infringing drugs with customs?
The map was helpful in understanding the article. 🙂
She would be the first recorded case. I’m not saying that they couldn’t do it to make an example of her, but they haven’t yet. And I’m not sure that they’re losing enough money (because they’re still making legal canadian sales) to this activity to merit trying to shut it down.
While it doesn’t directly address all the points you raised, there is an FDA guidance on personal importation of drugs:
link to fda.gov
Curiously the bottom line is that FDA inspectors should exercise discretion concerning what is admittedly illegal activity. Note also that the policy dates from 1998.
This would be very useful information for the general public. A law-abiding senior citizen of my acquaintance has made several purchases from an online Canadian pharmacy, in order to save significant amounts of money. However, she is concerned about the law as it might apply to her.
JEB, at the moment, the CAFC’s decision in one of the Fujifilm cases still controls with regard to patent exhaustion (the patent equivalent of the copyright first sale doctrine). That decision says that if the sale was made outside the USA, then the US patent rights haven’t been exhausted. So if a drug is made in, say, Ireland and then shipped to Canada, any US patent protection on that drug still holds. (The Supreme Court had a chance to address this, albeit obliquely, in its 2010 decision in Costco v Omega, but didn’t.) Dennis has blogged about this issue before, and I have two entries on my blog discussing the Costco case as well.
Dennis,
The questions you pose, especially the first two, are very interesting. And the answer on those is “murky” to say the least. Check out my article on enforcing patent rights on technologies which “straddle” national borders: link to jolt.richmond.edu . I’ve collected a number of cases that interpret these “straddle” issues under 35 USC 271(a), 271(b), 271(c), 271(f), and 271(g). Hope that’s of some help you to you.
I haven’t looked at this issue for a while but assume the “first sale” doctrine may apply depending on the terms of the online sale and the rights of the seller (e.g., authorized to sell without restriction?). My guess would be there are tight sale restrictions or the seller isn’t authorized, but from a practical standpoint Big Pharma likely doesn’t go after individual infringement but would instead focus on the distributors.
Thanks for the post this quality Property providing firm. I am so happy to your quality service.
Thanks
Tania Tani
“Gourmet”>http://gourmetsecrets.info/>”Gourmet Secrets”
I was working the border patrol the other day and I totally spotted some prescription drugs being imported. They looked like they were for personal use and Johnson and Johnson didn’t say anything so I let them through.
Yes I was wondering about this too!
Comments are closed.