Research On Compulsory Licensing Of Patented Pharmaceutical Inventions

As a mechanism to balance the interests of the intellectual property protection,the compulsory licensing of patent has been playing acritical role in every country's patent legislative framework.This is especially true for developing countries considering the game between developed countries and developing countries.However,right to health and right to life are two fundamental rights for human beings,which leads to the natural dilemma between public health and patented pharmaceutical inventions.India,as a developing country,has something in common with China in terms of population,economics,geographical environment and other indicators,we may obtain some references or enlightenment from India.Besides,while quite a few applications of this mechanism have been existed on the international level,there is zero actual cases of compulsory licenses in China since the establishment of the said mechanism.Such dilemma also troubles Chinese patent regime as the public policy doctrine has not been practically maneuvered despite its existence.Whether this mechanism is necessary in China and if necessary,whether there isany flaws of legislation and how to overcome and improve it.In light of the problems mentioned above,this article compares and analyzes the contents and the operating procedures of compulsory licensing legislation as well as the practical cases in China and India,in combination with current situation in China,in order to give some suggestions and reference about compulsory license in China.The first chapter introduces the basic concept of patent,compulsory licensing and compulsory licensing for patented pharmaceutical inventions,and summarizes the origin and development of international legislative development of such mechanism.It analyzes the distinctive features of pharmaceutical industry and compares the difference between compulsory licensing for patented pharmaceutical inventions and traditional compulsory licensing.Compulsory licensing comes from Paris Convention,established in TRIPS and developed in some international papers in post-TRIPS.The second chapter analyzes the difficulties of compulsory licensing for patented pharmaceutical inventions.On one hand,the relation between patent and innovation is confusing.Patent encourages innovation or on the contrary,patent hinders innovation.On the other hand,pharmaceuticals are necessarily related to such concepts as right to health,access to medicines and essential medicines,which are introduced in this part.The third chapter compares the features of legislation and practice of China and India regarding compulsory licensing for patented pharmaceutical inventions,based on the general summary of the respective practice of these two developing countries.The forth chapteranalyzes the shortage and flaws of China's legislation and practice of compulsory licensing for patented pharmaceutical inventions.Based on this,it provides advice and suggestions,hoping to solve and improve the mechanism in legislation and practice.