The Hermeneutics of Patent Exhaustion Doctrine in India

Abstract

This paper focuses on the hermeneutics that form the current legal landscape of patent exhaustion law in India. There are several reasons why this Chapter has chosen to focus on the legal hermeneutics of the doctrine of patent exhaustion in India. First, the policy debates on patent exhaustion are very polarized and have had little impact on the legal content. Thus, it is the content of law that informs the policy today. Second, many jurisdictions, including India, have already undertaken several legislative measures, including failed measures, to legislate the contours of the patent exhaustion doctrine. Hence the debate has shifted back to how law in interpreted. Third, the policy debate is less relevant today since there is a clear deference to WTO members to enact their own regime of exhaustion. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) does not prescribe or proscribe a regime of exhaustion, which is otherwise consistent with the agreement. Hence, exhaustion is totally dependent on what WTO members have chosen to enact. Lastly, legal hermeneutics as a field of study routinely challenges one to think how law is “interpreted” or “constructed,” which has led to a distinct discourse on how the law informs policy.