Goods suspected of infringing an IP right under customs control: Special procedure for generic medicaments and pharmaceutical products in transit
Border intervention impacting the legitimate trade in generic medicines has given rise to complaints by third countries and non-governmental organisations. The Intellectual Property Office has advised that as a matter of intellectual property law, a patent (and by extension an SPC) is territorial and infringement is decided under national legislation. If no patent has been registered in the UK in respect of a product, then no action for patent infringement can be brought in the UK in relation to that product. Similarly, if there is no evidence that goods in transit through the UK are likely to be placed on the UK market, it is not possible to suspect that a potential patent infringement exists even if a patent registration is in place; hence such goods are not to be detained on that basis.