A Comparative Research On The Patent Compulsory Licensing Of India And China

As a mechanism to balance the interests of the intellectual property protection, the compulsory licensing of patent has been playing an important role in every country’s patent system, especially for developing countries. The provisions of compulsory licensing in<Agreement On Trade-related Aspects of Intellectual Property Right> show some flexibilities, and provide the Members more free space on legislation, law enforcement and judicial procedures. Well, the compulsory licensing of patent is only a mechanism to balance the interests, which relates the limited harm to the patentee. How to start a compulsory license or to agree on the license agreement or to balance the conflict between the applicant which comes from developing country and the patentee from developed country, all of these issues have been the key point of the practice among the members, especially in developing countries. The debates around the compulsory licensing of patent have been continued in recent years and the developed countries exerted more pressure on developing countries, developing countries, nevertheless, are increasingly focused on the use of compulsory licensing system to hold their own interests. To this end, we Chinese government should strengthen the system, and make a full and effective use of that to promote social progress and national development.India is our neighbor, we have the common basic reality, with the similarity of the population, economic, and geographical environment. These can provide more convenience in transplant and implementation of the system for each other. In India, compulsory licensing of patent has a long-term exploration and practice, and also undoubtedly provides appropriate experience for China which is still hard to start the system. The provisions of compulsory licensing of patent in India are earlier than in China, although India’s first successful case was implemented in2012, India has never given up the attention and improvement of the compulsory licensing system, the relaxed licensing reasons, comparatively perfect contents of the Patent Law (1970) created a strong generic drug market which has brought further opportunities for country’s development and help the disadvantaged groups enjoy more affordable medicines, all of these met the government’s longstanding policy-"the benefits of development to benefit the majority of the poor masses ". On the contrary, Chinese compulsory licensing system of patent always shows a cautious attitude, the rigor required by its law, abstract, fuzziness seriously impede its implementation, even the outbreak of several large public crisis could not drive it. Faced with the facts that domestic patents have the low quality and the space of innovation slowly moved, the government should consider firstly strengthening our national enterprises through compulsory licensing. So, we need to re-examine the provisions of this system and renew the idea that compulsory licensing impede our social innovation, exploit the flexibilities of TRIPs and our national conditions to enhance the possibilities of compulsory licensing.Based on the above analysis, this article uses contrast-analysis for showing the legislation, law enforcement and judicial procedures of compulsory licensing and mining several development ideas:First, from national perspective, we should make different adjustments to the compulsory licensing, for innovation and poverty interests, our current approach should favor the latter; Second, implement the compulsory licensing should first consider the laws and regulations going by, and then maintaining their flexibilities; Third, ensure that the parties seek a judicial or other relief approaches to protect the rights and interests of each other, the above three points also constitute my outlook on compulsory licensing of our patent system.