Research On Medicine Patent Right Restriction

With the unceasing development of economic globalization, world trade becomes more and more frequent. At the same time, however, infectious diseases spread at an unprecedented speed among different countries. Especially in the last decade, the outbreak of SARS in the world and the spread of bird flu in Asian make the condition of public health in China far from being satisfactory. Except from the public health crisis caused by serious epidemic diseases, AIDS and other multiple diseases are also alarming public health problems. The health of human beings is faced with unprecedented threat. Aiming at the negative effects of medicine patent right protection under such situation, the discussion about balancing medicine patent right and public health interests are constantly triggered.As a key method for preventing and curing diseases, medicine plays an important role in controlling public health crisis and threats. Although the provision of medicine patent protection promotes the research and development of medicine, this monopolistic protection also causes difficulties in medicine access to a large extent. This conflict becomes more acute when managing public health crisis. Whether or not people can get access to the protection and cure of diseases in public health problems depends on their medicine access. Ensuring the medicine access has become the main step in solving public health problems. Within the framework of patent legal system, solving the contradiction of balancing human interests and public welfare while restricting medicine patent right reasonably is the writing direction of this paper. Research in the system of medicine patent restriction has both theoretical significance and pragmatic values in coping with public health crisis. This paper analyzes the parts to be perfected in the existing system and constructs a reasonable restriction system of medicine patent right with a particular focus on balancing human interests and public welfare. First, the scope of medicine patent right restriction is defined through the analysis on the progress and present situation of patent right restriction. The medicine patent right restriction in this paper is defined as balancing the contradiction between human interests and public welfare, perfecting existing system and constructing reasonable restriction system. The theoretical basis of medicine patent right restriction system is put forward from the perspectives of general principles in right restriction and demands in patent right system, and the validity of medicine patent right restriction is proved.Second, aiming at the problems in social reality, different interest demands and conflicts concerning medicine patent protection and restriction between the developed countries and the developing countries are discussed in this paper. At the same time, the restriction demands of medicine accessibility caused by public health problems and the urgent demand for medicine patent right restriction of public health crisis are analyzed with great emphasis.At last, laws in existing patent system of China which are suitable for medicine patent restriction are generalized. The standpoint of the existing patent law system is discussed and the problems of our country in the prior user right, scientific experiment, experimental use exception and compulsory licensing system are pointed out. Through the above discussion, the idea of perfecting our medicine patent right restriction is put forward which mainly covers establishing the legislative intent of balancing medicine patent right and public health right and perfecting the existing medicine patent right restriction system, etc. Medicine patent right restriction benefits not only independent research and development of medical industry, but also the solving of public health problems. At the same time, the idea of limiting restriction under the condition of maintaining the balance between human interest and public welfare are raised on the assumption of establishing specialized medicine patent right restriction system and from the perspectives of times development. It is hoped that the chances for medicine access can be increased and the conflict between public health and medicine patentee's interest can be balanced through the above systems, thereby, the goal of preserving public health will be achieved. Of course, the key of medicine patent right restriction is to strengthen the independent research and development ability of the domestic medicine which can provide effective safeguard for maintaining public health and promoting social development.