Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options

Journal of Law, Medicine & Ethics, Vol. 37, No. 2, Summer 2009

17 Pages Posted: 15 Apr 2010

Date Written: June 1, 2009

Abstract

In this Comment, the author traces the relevant legislative history pertaining to compulsory licensing of patented pharmaceuticals from the TRIPS Agreement of 1994 to the 2003 waiver to, and later proposed amendment of, article 31, which enables poor countries to obtain needed medicines from other countries that possess manufacturing capacity. The Comment then evaluates recent, controversial uses of the relevant legislative machinery as viewed from different critical perspectives. The Comment shows how developing countries seeking access to esential medicines can collaborate in ways that would avoid undermining incentives to innovation and other social costs attributed to compulsory licensing. It ends by defending the legality of recent measures taken to promote public health in developing countries, and by reminding developed countries that unilateral retaliation against such measures is demonstrably illegal under WTO foundational law and jurisprudence.

Keywords: compulosry licensing, drug patents, TRIPS, innovation policy, pharmaceutical licensing

Suggested Citation

Reichman, Jerome H., Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options (June 1, 2009). Journal of Law, Medicine & Ethics, Vol. 37, No. 2, Summer 2009. Available at SSRN: https://ssrn.com/abstract=1589526

Jerome H. Reichman (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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