| As the major constraints of the patent system the compulsorylicensing, which is to prevent abuse of monopoly franchises and animportant means of protecting the public interest, has been an importantcomponent of the patent system in many countries. After TRIPS hadbeen signed, widespread criticism against that Article 31 of the TRIPShampered many developing countries in dealing with the AIDS crisishas been in the international community. In this context the compulsorylicensing has increasingly become a hot topic in international forumssuch as WTO and WHO.Whether it is practical or theoretical research in patent law, thecompulsory licensing is hard to understand while easy to arousecontroversy. In recent years, theoretical research of the compulsorylicensing at home and abroad has attained a certain level, but systematictheoretical analysis about it is not profound. Based on above mentality,adopting the method of historical analysis,philosophical analysis,economic analysis, this article has conduct the research and discussionfrom the following four parts:The first part is to carry on the history of the development of thecompulsory licensing. It includes four sections. In front of the threesection, it discusses on the premise, the basic values and the basicspirit of the compulsory licensing. In the last sections it points out thatnever experienced the struggle for law is one of the historical reasonsthat the compulsory licensing in China is difficult to implement inreality.The second part includes philosophical analysis for the compulsorylicensing. It elaborates the justification of it mainly from the legal valuein five sections. The first section overall demonstrates that fairness andjustice is the legal value of the compulsory licensing. Specifically thecompulsory licensing shows that the concept of fairness and justice inproduct allocation process. The other sections discusses on this view in detail from the equity, equality, charity and reasonability.The third part includes Theoretical analysis of human rights for thecompulsory licensing. This part contains three sections. The first sectionelaborates that the compulsory licensing solves the public health crisis inthe great role. The second section discusses, from the theoretical andpractical aspects, that although the patent and the human rights is fromthe same root, the conflict is in the current situation. The third sectionelaborates the conflict with the patent and the human rights include twoaspects that one is the conflict with the privacy and the human rights theother is the conflict with trade and the human rights. The latter is whythe compulsory licensing has been widely disputed in internationaltreaties. Only in this way that the WTO rules on human rights and tradecoordinate can we solve the problem.The forth part includes the economic analysis for the compulsorylicensing. It includes four sections. The first section outlines the basicstarting point and basic methods of the economic analysis for thecompulsory licensing. The second section discusses, from clarifyingproperty rights and reducing transaction costs, that what is the cause ofthe compulsory licensing been constructed. The third section elaboratesthe possible impact of the compulsory licensing on the economic andsocial. The fourth section discusses the role of the compulsory licensingas an example of the Canadian patent case. |
