Facilitating Compulsory Licensing In Response to Health crises in developing countries

The basic approach of patent law is to strike a balance between the interests of an inventor and that of consumers. It also ensures that the benefit of the new technological advancements reaches people and they are not exploited by the Patent holder through creation of monopoly or any other means. Thus the mechanism of compulsory licensing is being developed. In compulsory licensing, party other than the legitimate holder is given rights over the patented technology. Though, TRIPS does not dictate the subject matter which can be licensed, but prescribes procedure intends to ensure that compulsory licenses are fairly issued with reasonable consideration of patent owner’s interest. However, in pharmaceutical sector, use of compulsory license is extreme and unprecedented. Compulsory licensing has a long history, the time at which TRIPS was concluded; most nations already had provisions authorizing them.

After short introduction of compulsory license under TRIPS agreement and the Paris Convention, this article verifies whether the decision of controller satisfies the conditions in International Treaties in relation to CL. Over the past few years few countries such as Brazil, Thailand, and Canada have granted Compulsory license, India is just latest country which has relied on this tool of compulsory license. Also the article would examine the interrelationship between the grant of compulsory licenses for essential medicines, the influx of FDI and its impact on Public health and innovations.

The article concludes that if compulsory license is widely used then it would be beneficial and effective in the public interest and it would help the developing countries to use their resources effectively for the growth and development. It also concludes that the present trend of non-working of patents in India shows that patenting is attractive merely due to the high profits from the large Indian market, and patented products are imported with no actual transfer of technology. It also shows that the present patent system has deviated from its objective of socio-economic welfare.

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