The Studies On The Pharmaceutical Patent Law

Pharmaceutical patent has become "one of the most hotly disputed issues in the intellectual property protection" because of involving huge economic interests and social interests .Except for the substantiality qualification of the pharmaceutical patent , the author summarizes the special provisions and new development of pharmaceutical patent legislation in civil and international law ,researches some especial problems in the sight of balancing interests ,in order to gain the legislation current in this field and offer some use for references in CHINA.The article is consisted of four chapters.In chapter 1, the author reviews the general theories of patent protection concisely and indicates that the patent system is modified in the balance of interests just since it comes into being . In this chapter it also introduces some characteristics of pharmaceutical invent such as enormous investment and rewards ,close relationship with public interests and so on , defines the pharmaceutical patent discussed in the whole article.The special protection and limitation on pharmaceutical patent are analyzed roundly in chapter 2 .The pharmaceutical patent policy in developed countries trends to protect the intellectual property strongly to stimulate developing new technology and investing in pharmaceutical industry . This trend is expressed as the pharmaceutical patent extensions in civil law, "Mail-box provision" and exclusive marketing right in the TRIPS agreement .Except for these special protections , there also have some limitations to the pharmaceutical patent ,such as Safe Harbor Provision, compulsory license of medical inventions and the freedom of doctors' using medicines.In chapter 3, the author analyzes some special issues in pharmaceutical patent field combining with the Doha proclaim ,such as the effectiveness of the proclaim ,the objectives and principles of the TRIPS agreement ,compulsory license , exhaustion of patent rights and parallel importation .The public health crisis caused by AIDS leads to dispute smartly recently. The Doha proclaim is the result of the conflict and balance of interests in this period .The author deems that the proclaim is a multi-lateral agreement bounding members .After reviewing the investment remuneration of pharmaceutical company ,the source of research capital , new drugs invention ,and the relations among them ,the author finds some reasons against compulsory license and compulsory license products export are incredible .In addition ,the author thought that TRIPS agreement restricts the parallel importation and prevents from gaining affordable drugs .It seems that patent right is held down by other rights gradually . It introduces some legislation current first in chapter 4.The author believes that it is possible indeed that healthy right is prior to pharmaceutical patent when public crisis is happened .The last content is a summary of legislation of in CHINA. The author suggests that "using patent for science and experiment" tort exemption should be interpreted widely and some statutes on medicine technology protection should be supplement after being consummated.