The Trips Agreement 31 Studies

The thesis examines whether the provisions on compulsory patent licensing under article 31 of the TRIPS Agreement?strike a proper balance between the rights of patent holders and the legitimate needs of developing countries. It concludes that the TRIPS Agreement tilts the balance against the users of patented technology or developing countries. The thesis also argues that the compulsory licensing system under the TRIPS Agreement is yet to be improved.There are four principal arguments in this thesis. Firstly, compulsory patent licensing, as a device to fetter a patentee's power and to protect public interest, has been an essential component of national patent laws since the middle of nineteenth century. Secondly, the thesis displays the unbalancing nature of the TRIPS Agreement in general, and article 31 in particular. The TRIPS Agreement subjects the granting of compulsory licences to a splay of onerous conditions. For example, each instance of compulsory licensing has to be considered individually and must be preceded by attempts at voluntary negotiation. Thirdly, by citing two recent cases relate to compulsory licensing, it shows that the onerous conditions for granting compulsory licences and the ambiguous wording of article 31 could be abused to block any attempts of developing countries to employ compulsory licensing system. Fourthly, the economic analysis of law indicates that compulsory patent licensing may reduce the costs of granting exclusive patent rights, and it is particularly the case in the context of international patent system. Thus the onerous constraints on the granting of compulsory licences under the TRIPS Agreement may enrich developed countries at the costs of developing countries. Finally, the thesis suggests that the arduous conditions for granting compulsory licences under the TRIPS Agreement be greatly lessened.