Review of Granted Compulsory Licences
Compulsory Licensing: Practical Experiences and Ways Forward (Reto M. Hilty & Kung-Chung Liu eds., Springer, 2015)
20 Pages Posted: 28 Jan 2016 Last revised: 28 Sep 2019
Legislators recognise that exceptions and limitations may be established to help the achievement of the ultimate goal under patent law. However, exceptions and limitations are made to keep the interest balance between the patentee and the public, including the potential competitors of the patentee. Such interest balance would be obtained when patentees are restrained from asserting their exclusive rights against some acts that have no substitution effects on the patented products and, at the same time, are conducive to the disclosure of and access to the patent to enhance the technological development. This inference is supported by Art. 30 of the TRIPS Agreement, after which limited exceptions can be allowed in patent law provided that they “do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties”.
In our opinion, “a normal exploitation” and “the legitimate interests” of the patent should be subject to the substitution effects of the products made under compulsory license, and the legitimate interests of third parties should be measured by whether such interests benefit the ultimate goal of patent law. When the infringing acts have no substitution effects, “a normal exploitation” and “the legitimate interests” of the patent are not negatively impacted, and such acts may justifiably be named as exceptions and limitations.
The granting of a compulsory license functions through the waiver of specific exclusive rights, to an extent. Therefore, the granting of a compulsory license is among the exceptions and limitations under patent law. Based on our arguments about the exceptions and limitations, the granting of a compulsory license should be tested by the criteria of Art. 30 TRIPS Agreement to secure its justification.
Keywords: Compulsory License, Patent, Public Health
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