The Theory Of Drug Patent Compulsory License Svstem

In today’s economic globalization,knowledge plays more and more important role in economic development,intellectual property rights made the western developed countries towards prosperity. Intellectual property rights system stimulate human creativity ability in more and more countries,it makes the international society in western developed countries under the advocate of strengthening protect intellectual property rights. However, the exercise of the rights and protection must also consider product’s affection in the external society, especially in the developing countries and least developed countries because of the lagging economic development, per capital purchasing power is low, the cause of medical and health services and social security system is not sound; the high standards for intellectual property rights protection mode made the ordinary people in these countries, especially the large number of HIV/AIDS, cancer of the liver, kidney, and malaria, the life and health of people with chronic illness such as heart disease, diabetes, not guaranteed. In this case, in order to solve the public health crisis, patent drug prices too high and the problem of poor drug accessibility, TRIPS agreement stipulated in the countries have the rights to take measures to implement the drug patent compulsory license system. The purpose of this paper is discuss the relations among addressing drug, patents, the public interests completely.This article is divided into three parts:introduction, text and conclusion, the text consists of four chapters:First of all, this article starts from the definition of the drug patent system, define the meaning of the drug patent compulsory license system, introduces its type, characteristics and the difference between common patent compulsory license systems. At the same time, it describes the drug patent compulsory license system from the angle of historical development. From the Paris convention, The agreement on trade-related intellectual property rights, The Doha health declaration,the implementation of the TRIPS agreement and public health declaration, The sixth paragraph of resolution and on the modification of the TRIPS agreement protocol on several international conventions in the regulations on drug patent compulsory license system, this paper tells about the patent system after several hundred years of history, from emperor give privilege to protect domestic evolution to the present stage of international protection of the TRIPS agreement and the relation with international treaties.Secondly, this part mainly wrote the overseas legislation current situation on the drug patent compulsory license system and the relevant practice of the country. Both developing countries and developed countries, the related provisions on drug patent compulsory license system is connect with the unity of the TRIPS agreement rules, WTO members have a duty to comply with the minimum standards related to the protection of intellectual property rights in TRIPS agreement. This article only introduce the United States, Britain, Canada, India, because of the four countries are developed countries and developing countries implement the typical representative of the system. Then, the third part mainly wrote drug patent compulsory license system in our country’s legislation present situation and existing problems. In 1992,2000 and 2008 our country respectively modified for three times, explicitly stipulated in the patent law in order to realize the purpose of public interests, the administrative department for patent under the state council may approve drug patent compulsory license, although made the implementation of the system had certain legal basis, the relevant detailed rules for the implementation of the patent law is not very perfect, there are many deficiencies in the current laws and regulations. And this article will discuss about the imperfect laws and regulations, apply to implement the limitation about system of subject scope, there is no clear stipulation of patent compulsory licensing fees and drug patent compulsory license application for restrictions on four aspects, discuss our country’s law has clear provisions of the system, the public health problems also exist in reality, under the condition of our country still has never issued patent compulsory licensing. Finally, through the discussion of the front three parts, especially in the third part puts forward the implementation of all kinds of problems of medicine patent compulsory licensing in China, the successful cases in foreign countries and the actual situation of our country, this paper compares and analyzes drug patent compulsory license system for perfecting our country puts forward related measures and suggestions, meanwhile, using by rational coordination to insure the patent holder’s rights, protect the citizen’s health right and safeguard social public interests to achieve a relative balance satisfactory state.