Research On The Implementation Of Patent Licensing System For Drugs In China

With the degree of globalization continues to deepen, and the increase of technology communication among countries, patent rights plays a more and more important role in economic development. Patent rights are not only conducive to the transfer of advanced technology among countries, but also can simulate firms and individuals’creativity to researching and developing new technologies. However, in the meantime, with the epidemic of such fatal infectious disease as HIV/AIDS, H7N9 Bird Flu, and Ebola, the increasing public health crisis has become one of the most significant challenges to global governance and even a crushing blow to least developed and developing countries with poor medical system and high standards for potent rights protection mode which made ordinary people in these countries dropped out from the public health service. Thus, in this sense, drug patent compulsory license systems become one of the most important methods to protect public health in these countries.Currently, the studies toward this area are various. Some articles are trying to analyze the issue from the perspective of jurisprudence, to prove that the compulsory license of pharmaceutical patent is lawful. Such a study believes that according to the social contract theory, an individual’s right is restricted to a limited range, to achieve the purpose of serving the public society better. However, the researchers believe that the monopoly of patent is just another way to hurt the benefit of public society. In this regard, the abuse of patent has lost its natural properness. Another consideration of this issue is that the comparison between different legal value. Those researchers believe that the protection of patent is the key to motivate the development of technology, while when the patent has a conflict with health right or even life right, then we have to compare them to each other. Also, there are some articles who tries to give an accurate definition to the concepts related to compulsory license, the department of government who should be responsible for this issue and the procedure to initiate it. We can also study this issue from international law, such as how to cooperate with WTO system, how to help our country to gain a better position in the international society through a better use of this mechanism.Meanwhile, it requires domestic supporting mechanisms, such as the assessment and examination on pharmaceutical patent. In general, many scholars and researchers have been promoting a variety of perspectives and statements studying this issue, as stated above, whether to demonstrate the feasibility of the compulsory license based on Jurisprudence or attempt to improve the relevant systems based onInternational Economic Law. However, the preview studies have deficiency in practicability. It is crucial to find out the reason why China has rarely take legal means in protecting the country from major diseases, especially when such methods have been widely used in most of the other foremost emerging developing countries. This study discuss from two difference aspects, the causal reasons and the potential quantitative solutions, on the impracticability of pharmaceutical compulsory license in current age of China.This article is trying to analyze the international treaty related to the issue and the creation of law domestically to discovery the way to improve the legislation regulation of our own country. Specifically speaking, the article will study the TRIPS, Doha Declaration, and the domestic law, such as patent law, the way to implement the paten law. Besides, the article will compare the domestic law with other developing countries law. In this way, I hope I could come up with advises on improving and completing our own legislation terms. This essay will base on the research of related documents and the comparison, combined with the domestic legal background to analyze this issue. Meanwhile, some quantitative research will be introduced to this essay. For example, a focal point of this issue is how to calculate the compensation fees to the patent owner. I believe that such an amount could be calculated by the research of related case study, and to analyze the economic factors.Since this topic is related to pharmaceutical part, during the study of the issue, I may somehow focus on the professional knowledge and ignore the legal part. I will try to avoid such things and give out the opinion from the perspective of legal. At the same time, if I deem to do some quantitative research, the lack of data may be an obstacle for me. Thus I may modify the direction of research during the process.Through the research of related international regulation and treaty, I hope I could have a better understanding and analysis of pharmaceutical compulsory license. By the study of related case study, come up with some feasible solutions for our country in this area.