Legislative Perfection Of China’s Pharmaceutical Patent Compulsory License

In recent years,the response to the public health crisis caused by infectious and non-communicable diseases has triggered a wave of research on the compulsory licensing system for pharmaceutical patents in order to effectively balance the relationship between patent protection and public health.On the one hand,the release of "I’m Not the Medicine God" has sparked some scholars’ views on compulsory licensing of pharmaceutical patents for high-priced anticancer drugs such as Gleevec and Herceptin to solve the public health crisis caused by non-communicable diseases;On the one hand,the public health crisis triggered by the "COVID-19" infectious disease has triggered a call from the academic community for a potential clinical trial drug Redecive to implement a compulsory license for pharmaceutical patents.However,the compulsory licensing system for pharmaceutical patents in China has never been implemented so far.The disconnection between the practical needs and the theoretical research contradicts the necessity of legislative research on compulsory drug patent licensing in China.Based on this,this article takes "the perfection of the compulsory licensing of pharmaceutical patents in China" as the topic,through in-depth study of the international and domestic legal sources of compulsory licensing of pharmaceutical patents in China,the theoretical basis of compulsory licensing of pharmaceutical patents,the legislative deficiencies of compulsory licensing of pharmaceutical patents in China,and Insufficient and extra-legal causes of inadequate legislation and corresponding suggestions for improvement,it was found that the compulsory license for pharmaceutical patents originated from the compulsory license provisions of the Paris Convention.Our country has domesticized it in the 1992 Patent Law.Make full use of the flexible provisions of the "Trips Agreement" to refine relevant legislation.The theory of intellectual property interest balance,the justice value of law,and the "patent cliff effect" are the main theoretical sources for the compulsory licensing of pharmaceutical patents;abstract and cross-licensed reasons,vacancies in the application rights of natural person applicants,vague implementation conditions for unit applicants,The abstraction of the subject matter of the application,the lack of professional determination of the organization and the calculation of the license fee,the legal provisions that have not yet been systemized,the lack of a simplified procedure for emergency permits,the ambiguity of the procedures for determining the subject of implementation,and the incompleteness of judicial and administrative relief procedures The main legislation for compulsory drug patent licensing in China is insufficient.The aforementioned inadequate legislation is caused by a combination of legislative and extra-legal factors.The former refers to the mechanical transplantation of the flexible provisions of the "Trips Agreement",which has led to the abstraction of the compulsory licensing of pharmaceutical patents in China;the latter refers to the weakening of the role of compulsory licensing of pharmaceutical patents in order to avoid international trade frictions and conform to the trend of welfare of international drug access policies The compulsory licensing of pharmaceutical patents in China tends to shrink.Based on the foregoing research on the related legislation and extrajudicial factors of compulsory licensing of pharmaceutical patents in China,the following suggestions are proposed: on the one hand,in order to avoid international trade friction and protect the interests of patentees,it is necessary to actively limit the implementation of compulsory licensing of pharmaceutical patents;on the other hand,Efficient response to the sudden public health crisis such as "COVID-19" requires active implementation of compulsory drug patent licenses.The compulsory drug patent licensing system is the result of political and economic games in different countries.In order to protect national interests,it is necessary to lead the negotiating position in international agreements and take full advantage of the flexible provisions of the TRIPS Agreement in accordance with China’s national conditions.The drug patent system is oriented,by clarifying and categorizing the reasons for compulsory licensing of pharmaceutical drugs,granting natural person applicants the right to apply to expand the scope of the application subject,clarifying the implementation conditions of unit applicants,refining the object of compulsory licensing for pharmaceutical patents,and establishing cross-sectoral Specialized decision organization,clear licensing fee calculation standards,systematizing related laws and regulations,setting up simple procedures for emergency licensing,clear procedures for determining the subject of implementation,and improving judicial administrative relief procedures to solve the dilemma of the implementation of China’s compulsory licensing of pharmaceutical patents.