Comparative Study Of Patent Compulsory Licensing System

Protection and utilization is the base of patent system. Patent law was enacted for the purpose of realizing the coordination between protection and utilization. Protection refers to protecting the rights of the inventor and patentee; while utilization means to ensure that the invention will benefit the public and society. Thus, in reality, resulted in the contradiction between monopoly and implementation, and this contradiction was messed by different attitudes of the nationalism and internationalism, which led to a worse state. During the course of settling the above contradiction, the content of compulsory licensing was added to patent law. Generally speaking, the purpose of compulsory licensing is to threaten, not sanction. It is the jurisprudence source of the argument whether the patent system itself is the balance between public power and private right or trying to seek the balance through patent compulsory licensing system, which further led to the reconsideration of the value-orient of the relevant legal interests, that is, whether it is intelligent creation that endues patent with exclusive protection or the self-limitation of the private rights is for the purpose of public interests; whether it is the conflict between public power and private right or it is the conflict of interests between developing countries hidden behind public power and developed countries hidden behind private rights, etc.. All of these questions are unavoidable in the course of implementing the patent compulsory licensing system. It is necessary to study these questions in theory and put forward jurisprudential basis for the system established to perfect the patent system.This article is based on the comparison of the international legislation practice on patent compulsory licensing system, analyzed Paris Convention for the Protection of Industrial Property (Paris Convention), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement) and relevant laws and regulations of the main jurisdictions. Paris Convention is the first international statute law related to patent compulsory system, but its provisions on patent compulsory system are rather simple, which needs to be improved. While the provisions of TRIPS agreement reflects the principles of protecting public order, social morality, and public health, as well as the principle of giving reasonable limitation to the private right. TRIPS agreement detailed the vague provisions of Paris Convention. Just as what TRIPS agreement stated in its basic principles, that TRIPS agreement should be in line with the provisions of Paris Convention. As released by the provision on compulsory licensing of TRIPS agreement ( item b of Article 31), its focus has already been transferred from preventing the patentee's non-implementation of Paris Convention to preventing the patentee forbidding unreasonably others to implement patent and protecting the public interests. Article 31 of TRIPS agreement stipulates many restricted conditions and requirements for the application of patent compulsory licensing, which is the limitation to limitation of rights rather than the limitation of the rights. TRIPS agreement tends to protect developed countries'interests, which aroused the developing countries'attention and dissatisfaction. As to the issue of medicine patent and public health, Declaration on the TRIPS Agreement and Public Health and Implementation of Paragraph 6 of the Doha Declaration on the TRIPS agreement and Public Health made clarification and interpretation successively, and because of the concession of developed countries, the resolution on amending TRIPS agreement was adopted in HongKong Meeting in the year 2005, which led to the final compromise for this contradiction. As to the content of patent compulsory licensing, Paris Convention and TRIPS agreement is the fruit of compromise between developed countries and developing countries.In terms of legislation of different countries, this article analyzed relevant laws of several representative countries. US has always held a negative attitude to patent compulsory licensing system, and only in few fields stipulated patent compulsory licensing, and mainly uses the anti-trust law to regulate patent activities; French patent law also adopted stringent restricted provisions on compulsory licensing, both of which reflect the developed countries, the patent export countries, standpoint on protecting the interests of the patentees. While developing countries'attitude to this issue is totally reversed. The provisions of compulsory licensing of the original patent law of India are the most tolerant, but driven by the pressure of the developed countries like US, India amended its patent law and anew adopted patent compulsory system subject to the standards of TRIPS. The legislation of Brazil well reflected the national interests, and its struggle with Aids is a super example of success.In terms of system designation, this article analyzed both in theory and in practice. Rationality, crisis, and future direction of patent compulsory system will be mentioned respectively. The first rationality of patent compulsory licensing lies in that patent objectively aroused to the extent of the conflict of interests, namely, between private interests and public interests, efficiency and fairness. Interest conflict is resulted from the monopoly attribution of patent, while monopoly is the essence of patent, it is impossible to finally settle this kind of interest conflict through patent system's self-adjustment. Patent compulsory system is the self-compromise of patent system in an effort to reduce the interest conflict. At the same time, this article paid attention to the crisis may be resulted from the negative effect of patent compulsory licensing system. As it is impossible to resolve the fundamental issues of the contradiction caused by interest conflict, this kind of compromise mechanism just has transitional characters, and also the interest balance it obtained. Patent compulsory licensing objectively impacted the patent, which will in practice abuse the compulsory licensing, and the widely use of compulsory licensing will restrain creation, block the international transmit of patent information, and increase the cost of keeping the quality of the patent products. In summary, the international development of patent compulsory licensing is imbalance, and just this imbalance system may lead to the possibility of breakdown because of the intensified contradiction. In terms of future direction of patent compulsory licensing, this article discussed both perspectives of"as it is"and"as it ought to be". In terms of"as it ought to be", with the improvement of the patentee's compliance with law, the intensifying of the sanctions of monopoly law, the abuse of patent will definitely reduce increasing, and the patent compulsory licensing will be replaced by more reasonable right limitation system. At present, as some conditions are not satisfied, so"as it ought to be"is just an ideal state. In terms of"as it is", it is the reformation on the shortage of patent compulsory licensing, and enables it to be existed onward.China amended Patent Law and Detailed Implementation Rules of Patent Law successively, established patent compulsory licensing system in accordance with TRIPS agreement, and again promulgated Provisions on Patent Implementation compulsory Licensing and Provisions on Patent Implementation compulsory Licensing Related to Public Health so that formed a relatively perfect legal system of patent compulsory licensing system. Nonetheless, Chinese laws and regulations are not very reasonable, some of which overstepped the standards of TRIPS agreement, which is not beneficial for China to implement the patent compulsory licensing. In response to patent compulsory licensing system, China should hold a positive standpoint, and should take it seriously. Given the status quo, should study how to perfect the legislation and judicial system, strengthen the exterior limitation function of monopoly law, so as to establish IPR strategies that are most beneficial to our country's science & technology advancement and social development.