STATES OF A PRODUCT COVERED BY A PATENT ENDORSED "LICENCES OF RIGHT" WHERE THOSE AUTHORITIES MAY NOT REFUSE TO GRANT A LICENCE TO AN UNDERTAKING WHICH WOULD MANUFACTURE THE PRODUCT IN THE NATIONAL TERRITORY AND MARKET IT THERE .
QUESTION 3
28 THE THIRD QUESTION ASKS WHETHER THE ANSWERS TO THE FIRST AND SECOND QUESTIONS ARE AFFECTED BY THE FACT THAT THE ARTICLE IN QUESTION IS A PHARMACEUTICAL PRODUCT IMPORTED FROM A MEMBER STATE WHERE SUCH PRODUCTS ARE NOT PATENTABLE .
29 IT IS CLEAR FROM THE FOREGOING THAT IN A SYSTEM OF OBLIGATORY LICENCES SUCH AS THAT DESCRIBED BY THE NATIONAL COURT THE PROTECTION OF PATENT RIGHTS MUST BE CONFINED TO GUARANTEEING THE PATENT PROPRIETOR A FAIR RETURN IN RESPECT OF BOTH IMPORTED PRODUCTS AND PRODUCTS MANUFACTURED AND MARKETED IN THE MEMBER STATE IN QUESTION .
30 IT HAS, HOWEVER, BEEN MAINTAINED IN THE PROCEEDINGS BEFORE THE COURT THAT MANUFACTURERS IN A MEMBER STATE WHERE PHARMACEUTICAL PRODUCTS ARE NOT PATENTABLE DO NOT HAVE TO BEAR THE COST OF RESEARCH, UNLIKE MANUFACTURERS IN OTHER MEMBER STATES, AND CAN THEREFORE MANUFACTURE IN CONDITIONS WHICH DISTORT COMPETITION . A PROHIBITION ON IMPORTS IS THE ONLY MEANS OF REMEDYING THAT SITUATION .
31 THAT ARGUMENT CANNOT BE ACCEPTED . IT IS SUFFICIENT TO POINT OUT, WITHOUT THERE EVEN BEING ANY NEED TO CONSIDER WHETHER THE FACTS ON WHICH IT IS BASED ARE ACTUALLY CORRECT, THAT THE RIGHT TO A FAIR RETURN GRANTED TO THE PROPRIETOR OF A PATENT SUBJECT TO A SYSTEM OF LICENCES OF RIGHT IS INTENDED PRECISELY TO AFFORD THE PROPRIETOR RECOMPENSE FOR THE RESEARCH COSTS HE HAS INCURRED . THERE ARE THEREFORE NO GROUNDS FOR DRAWING A DISTINCTION ACCORDING TO WHETHER THE PRODUCT MARKETED BY THE THIRD PARTY WAS MANUFACTURED IN THE NATIONAL TERRITORY OR IN THE TERRITORY OF A MEMBER STATE WHERE THE PRODUCT WAS NOT PATENTABLE .
32 IN ANSWER TO THE NATIONAL COURT IT SHOULD THEREFORE BE RULED THAT THE REPLIES TO THE FIRST AND SECOND QUESTIONS ARE NOT AFFECTED BY THE FACT THAT THE PRODUCT IN QUESTION IS A PHARMACEUTICAL PRODUCT AND COMES FROM A MEMBER STATE WHERE IT IS NOT PATENTABLE .
QUESTION 4
33 THE FOURTH QUESTION ASKS ESSENTIALLY WHETHER, IF THE PROHIBITION ON IMPORTS CANNOT BE JUSTIFIED UNDER ARTICLE 36 OF THE TREATY, IT MAY NEVERTHELESS BE JUSTIFIED ON THE GROUNDS OF IMPERATIVE REQUIREMENTS RELATING TO CONSUMER PROTECTION AND FAIR TRADING, AS RECOGNIZED BY THE COURT IN INTERPRETING ARTICLE 30 OF THE TREATY .
34 FROM THE FINDINGS SET OUT ABOVE IT IS CLEAR THAT THE NATIONAL LEGISLATION RELATING TO LICENCES OF RIGHT IS NOT APPLICABLE WITHOUT DISTINCTION TO MANUFACTURERS ESTABLISHED IN THE NATIONAL TERRITORY AND TO IMPORTERS .
35 THE COURT HAS CONSISTENTLY HELD ( SEE, IN PARTICULAR, THE JUDGMENT OF 17 JUNE 1981 IN CASE 113/80 COMMISSION V IRELAND (( 1981 )) ECR 1625 ) THAT IT IS ONLY WHERE NATIONAL RULES APPLY WITHOUT DISTINCTION TO BOTH DOMESTIC AND IMPORTED PRODUCTS THAT THEY DO NOT FALL UNDER THE PROHIBITION LAID DOWN