Analysis On The International Legal System Of Compulsory License

The bird flu has caused great trouble to us, and make people feel terrible. Now the crisis has passed, the people begin to think about it and find some bad points. For its private rights,some corporations protect the patent in the crisis, and make the life of people in danger; When some countries plan to execute compulsory licensing, the international law and its states law limit their plan. There are some other troubles in the crisis that causing trouble to people.It is obvious that the AIDS and other diseases are more and more dangerous to the people. Why many patients can't get medicine and treatment when the medicine exists? And why the compulsory licensing can't be executed when the corporations don not agree to lower the price of the medicine? Especially in our country, there is no compulsory licensing till now. What causes this?This is the confusion that compulsory licensing brings to us.It is possible to trace the development of patent back to medieval times. However the accepted useful starting point is the Statute of Monopolies, adopted in England in 1623, an act that addressed a number of basic patent issues that remain relevant today. In time the right to control the various sectors of the market became a royal privilege, granted by the monarch in return for various benefits. These early monopolies were hardly like the modern exclusive rights granted for inventive developments. In the other hand the patent monopoly begin to cause bad things,the patent owner harms the interest of the consumers. Patent passing off also goes against the public interest underlying the granting of patents. So the compulsory licensing begins to in use.Compulsory licensing is when a government allows someone else to produce the patented product or process without the consent of the patent owner. It is one of the flexibilities on patent protection. Compulsory licenses are generally issued on the basis of public interest - e.g., public health, a national emergency, etc. In dealing with the above summary, this paper sets forth its standpoints in five parts:PartⅠ: Systematically introduce how the patents come into being with its own characteristics, which determines its greatly benefiting human beings in the following time. But it is exactly these very characteristics that negatively provide patent owners advantages with patent abusing, which makes the emergence of compulsory licensing a necessity.PartⅡ: Introduce systematically the intellectual property organizations and related international law in a worldwide scope, and analyze the background and transforming process of compulsory licensing. Before the 1986–19994 Uruguay Round negotiations, there was no specific agreement on intellectual property rights in the framework of the GATT multilateral trading system. However, some principles contained in the GATT had a bearing on intellectual property measures taken on imports or exports. The TRIPS Agreement does not specifically list the reasons that might be used to justify compulsory licensing. However, the Doha Declaration on TRIPS and Public Health confirms that countries are free to determine the grounds for granting compulsory licenses. The 2003 decision (sometimes called the"Paragraph 6"decision because it refers to that that paragraph of the Doha declaration) only deals with compulsory licenses to produce for export. Many news stories are about the possibility of issuing compulsory licenses to supply domestic markets. That was always possible.PartⅢ: Introduce the patent contents about compulsory licensing of certain representative countries in a worldwide scope, emphasizing U.S.A, U.K, E.U and China. Nations currently have the right to issue compulsory licenses on patents and copyrights. The Paris Convention for the Protection of Industrial Property plainly states"each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work."The World Trade Organization provisions on intellectual property are contained in the agreement on trade related aspects of intellectual property, known as TRIPS. The TRIPS provides for compulsory licenses of patents in Article 31, but also provides a number of restrictions on the use of compulsory licenses. The North American Free Trade Agreement has its own provisions for compulsory licensing of patents, which are somewhat more restrictive than those in the TRIPS. In earlier drafts of the OECD's proposal for a Multinational Agreement on Investments, there was language to limit compulsory licensing of patents much more severely. Compulsory licenses would only be used"to remedy an alleged violation of competition laws."After broad opposition to the MAI, negotiations were suspended. From the viewpoint of distinguishing the developed countries and the developing countries, analyze regulations in implementing compulsory licensing between them to get a conclusion that differences rest with national interestsPartⅣ: Summarize and classify compulsory licensing, form own standpoints in the base of consulting foreign and domestic mature categories. Meanwhile through analyzing the implementing situation of compulsory licensing in real society, get a conclusion that it is very difficult implementing compulsory licensing in real life. The Pharmaceutical Research and Manufacturers Association and the International Federation of Pharmaceutical Manufacturers Associations are actively lobbying the United States and the European Union trade officials to support international treaties and policies that would ban or restrict the use of compulsory licensing for medicines. The United States uses considerable bilateral pressure to stop developing countries from using compulsory licensing for pharmaceuticals. For example, the US is actively pressuring South Africa and Thailand against the use of compulsory licenses of pharmaceuticals to treat AIDS or tropical diseases. It is anticipated that disputes concerning compulsory licensing will eventually come before the WTO in the dispute resolution framework. Pubic health organizations want the WTO to recognize the primacy of public health concerns in the resolution of these disputes, and for the WTO to consult with the World Health Organization (WHO). The Pharmaceutical Research and Manufacturers Association and the International Federation of Pharmaceutical Manufacturers Associations want these disputes to be framed as commercial disputes, and they oppose the involvement of the WHO. In the end analyze relationship between the patent and compulsory licensing, through theoretical and law-economics analysis to conclude that the real function of compulsory licensing is overawingPartⅤ: How to deal with problems of our country. Through means of consummating implementing detailed rules in lawmaking layer, establishing the Licenses of rights, implementing national patent stratagem, strengthening government labors, developing corporation intellectual property policy, maintaining self-interests and learning from other countries to consummate and effectively use compulsory licensing.