Study On The Patent Compulsory License System

It becomes a basic consensus that intellectual property right is fundamentally privateright according to the influence of Rome Law. As a result, patent compulsory license systemis also recognized as the field of private law. However, its function and value in the light ofpolitics are neglected. In recent years, with the high standards of patent protection and patentexpansion, contradiction between public interest, basic human rights and patent rights isbecoming increasingly intense. There is a huge gap in the use of compulsory licensing issuesbetween developed and developing countries. Faced to the claim of with strict restrictions onuse of compulsory licensing by the developed countries, developing countries are in urgentneed of policy and legal response. By reviewing the history of intellectual property legislationin the United Kingdom and the United States, as well as the cases of Brazil and the UnitedStates to analyze the supply function and deterrence function of the patent compulsory license.This article attempts analyze three values of the patent compulsory license system, that is, toguarantee of supply, safeguard the public interests and protect the basic human rights, fromthe aspects of politics and constitutionalism perspective, using case analysis and historicalanalysis method. It reveals that the legislation of patent compulsory license system can notviolate the core value of patent, and must pay the price. On this basis，it points out theconstitutional configuration and arrangement of patent compulsory license system,interpreting the upper law system configuration and under the specific system configuration.At last, through reviewing the history of flexible use of compulsory license system bydeveloped countries and analysis of policy space for developing countries in InternationalConvention, China can apply the patent compulsory license system as the highest publicpolicy, and combined with relatively systematic analysis of patent compulsory license systemin the specific areas.