49 Pages Posted: 16 Sep 2010 Last revised: 7 Dec 2014
Date Written: September 14, 2010
Patent breaking to eliminate market exclusivity has occurred in a surprisingly large number of contexts. There are examples in a variety of technologies, ranging from medicine to military, and the countries that break patents include least-developed nations like Rwanda as well as developed, intellectual-property-centric nations like the United States. It is a useful legal mechanism that can provide an essential relief valve to intellectual property control. Unfortunately, evidence suggests that current international rules regarding patent breaking are ad hoc, rife with exploitation opportunities, and generally incapable of responding when the public good is truly in danger. In part, the sorry state of the law is due to the narrow political and academic focus on a single context, namely access to medicines. While extraordinarily important, this is only part of the picture and has led to an effort to shoehorn a useful tool into a setting where it does not fully fit, while ignoring its optimization in contexts where it could be more important. Three recent stories highlight the incoherence: the current failure of “access to medicines” legislation to deliver on its promise; the political and opportunistic patent breaking of developed and middle-developed countries; and the inability to secure licensed goods in emergency contexts. This paper uses the threads of these lessons to weave a coherent fabric of future compulsory license policy. It looks to the essence of compulsory license policy and proposes a revised analytical framework centered on human rights norms that would constitute an improvement over the current rules.
Suggested Citation: Suggested Citation