| As an important system of patent law, the compulsory license system forpatents (CLSP) is generally codified both in international laws and internallaws of different countries. The purpose of the system is to prevent thepatentee from abusing patent rights, hindering the application of the patentand impairing public interest. The system totally reflects one of substantialcharacter of Intellectual Property Law, that is balance of interests. Theinterests of the patentee and the public should be kept in a dynamic balance.To take much account of the interest of the patentee will impair the integralwelfare of the society, but to take much account of the interest of the publicand disregard the legitimate rights and interests of the patentee will not bebeneficial to invention creation and technical innovation. The basic clue ofthis paper is as follows: when the public health emergency happens, shouldthe public interest be prior to the interest of the medical product patentee?What binding terms should be satisfied to apply the CLSP on medicines? Arethere other supplementary methods to balance the interests between thepatentee and the public? At the present time, China needs to flexibly utilizethe CLSP on medicines for the purpose of improving the capability ofcontrolling the contagion of diseases, resolving national public healthproblems and providing a better environment for medicine innovation.Therefore, it is necessary to analyze how to utilize the CLSP in new situation. This paper contains three parts: Part one is a general dissection of the CLSP, in which the establishmentand the connotation of the CLSP in international laws, the litigation and thepractice of the CLSP in other countries and the related provisions in TRIPsare discussed, and at the same time article 30 and article 31(h) of TRIPs areanalyzed. The earliest confirmation of the CLSP was created in "ParisConvention on Industrial Property Rights Protection", and later article 31 ofTRIPs limits its utilization further and more strictly. The CLSP can generallybe divided into three types: compulsory license system for dependent patents;compulsory license system for the public interest; compulsory license systemfor preventing abuse of patent rights. Compulsory approbation is involuntary,compensatory, non-monopolistic and non-exclusive. There are strictlimitations on the duration and scope of its exploitation. According to aninvestigation of WIPO, in most of the 131 countries the CLSP is explicitlydecreed in laws and its meaning is almost the same, with only very fewdifferences in the concrete system. However, there are few cases about theCLSP in practice. Article 30 and 31of TRIPs are the regulations concerningthe CLSP. Part two is a comprehensive analysis of the CLSP on medicines. Thecase "international medicine companies vs. government of South Africa"discloses tense relations between the interests of the medicine patentee andthe public, and between protection of rights to health and protection ofmedicine patents, as well as the tense relations in the aspect of protection ofpatent medicine between the developing countries and the developedcountries. In this case, the necessity, scope and extent of applying the CLSPare also discussed. The constitutional value of the CLSP lies in the fact that itreflects the principles of prohibition of rights abuse, balance of interests andsuperior protection of legal interests, which is also basis of its justification.Through the analysis of the consequences and effects of the CLSP, this paperholds that broad utilization of the CLSP will refrain technical innovation,hinder the fluency of information exchange and will not be good for themaintaining product quality and acquisition of medicines. Therefore, at mosttime the CLSP is a deterring method and only when the negotiation with thepatentee has failed can the CLSP be applied as the last choice. Part three talks about the correspondent litigation, ri... |
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