Commitments On Access To WTO And Pharmaceutical Patent Protection In China

In recent years, people have paid high attention to public health with the frequent occurrences of the global public health incidents. Thus pharmaceutical patent protection about public health has been becoming the focus of the world. On the basis of the commitments which China has made to reinforce pharmaceutical patent protection when she acceded to WTO, together with the relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the thesis mainly discusses the institutional frame, content and problems of the pharmaceutical patent protection which China has been put into effect. The thesis can be divided into five chapters, the first one of which introduces the general commitments on the patent protection in commitments on Chinese access to WTO. Considering the logic relationship of the concepts of patent and pharmaceutical patent, the sensitivity of pharmaceutical industry to patent protection, social value of pharmaceutical patent protection and the high attention of international society paying to the legislation of pharmaceutical patent protection, we can conclude that Chinese commitments should apply to pharmaceutical patent protection. In Chapter 2, the provisions of the pharmaceutical administrative protection system in our country are introduced and analyzed. Firstly, it is a survey of the pharmaceutical administrative protection system. The system reflects the urgent desire for changing the conditions that there is serious lack of such system in our country, and what's more important, the submission to the pressure that America has exerted for protecting the domestic economic development and promoting the international protection of intellectual property rights. Therefore, the content of the pharmaceutical administrative protection system, to a great extent, is consistent with that of the agreement which has been arrived between China and America about intellectual property rights protection. Secondly, it elaborates that establishing the mailbox system beforehand in our country has been given a negative impact on the domestic pharmaceutical industry. Finally, the thesis analyzes the limitation of the subject, object and function of the pharmaceutical administrative protection system. Compared with pharmaceutical patent protection, the pharmaceutical administrative protection system indeed has many unsatisfied aspects. However, the pharmaceutical administrative protection system conformed to the Chinese fundamental conditions of pharmaceutical protection at that time, for it not only adapted to the development of the global intellectual property rights, but also made up for the defects existing in the framework of pharmaceutical patent protection system. But it's a transitional measure for a long term. In Chapter 3, the basic issues concerning pharmaceutical patent legislative protection under TRIPS are analyzed. Firstly, based on the provisions of TRIPS about patentable subject matter, in view that the pharmaceutical connects closely with the plants, animals and plant varieties, the chemical substances, the diagnostic and therapeutic methods and the Chinese traditional medicines, the thesis investigates the relations between them and defines the applicable content of commitments on Chinese access to WTO. Secondly, the thesis analyzes specifically the novelty, creativity and practicality of pharmaceutical patent. Finally, the applicable conditions and implementation of compulsory licensing are analyzed. According to the patentlaw, we conclude that such provisions are consistent with TRIPS as the rational commercial applications, national emergencies, public interests and conditions of subordinate patent, but there should be more specific provisions about the flexibility of the applicable conditions and the practice against anti-competition of compulsory licensing. Compulsory licensing system has dual effects, for it would reduce the competitive ability of pharmaceutical company though it keeps the stability of pharmaceutical price. Thus compulsory licensing of pharmaceutical patent hasn't been implemented in our country because of its negativity. The Chapter 4 of the thesis is mainly about the development of relevant systems which perfect the structure of pharmaceutical patent protection system. In theory, the parallel importation, experimental use and early working are analyzed and proved systematically and deeply. The parallel importation, which hasn't been provided in our country for its negativity, would be a practicable measure which the developing country may make use of when dealing with public health crisis. We should learn from South Africa in which confers the power of permit for the parallel importation to relevant department to solve the domestic public health problems. The patent law contains the exclusive rights of the patent and the exceptions to such rights in most countries. Such exceptions are broad in content and extent, some of which are particularly relevant to the health area. On the basis of analysis, the thesis has held that the experimental use and early working may be extremely important in fostering the innovation, promoting the diffusion of technologies or facilitating the reduction of the health-related pharmaceutical prices. Therefore, in our country, the experimental use and early working should be affirmed in...