Functions and Restraints of Compulsory Licensing: Perspective from TRIPS Agreement and Public Health

Functions and Restraints of Compulsory Licensing: Perspective from TRIPS Agreement and Public Health

 

Title
Functions and Restraints of Compulsory Licensing: Perspective from TRIPS Agreement and Public Health
Author
Richard Li-Dar Wang
Keywords
developing country, pharmaceutical patent, bilateralism, international intellectual property law, World Trade Organization
Abstract
In the academia there are generally two positions about the practical function
of patent compulsory licensing. In light of very few cases of compulsory licensing
seen in the world, even though it is acknowledged both by the Paris Convention
and the TRIPS Agreement, some commentators are skeptical of its function in the
real life. In contrast, the other side holds that even if the real cases of compulsory
licensing are scarce, the very existence of this regime can nonetheless afford a
useful leverage for domestic industries in the licensing negotiation with foreign
patent owners. Though both sides have their factual bases, they still fail to put
forth convincing evidences and concrete reasoning for their positions. However,
the wide spread of HIV/AIDS these years in Africa and Anthrax attack in the U.S.
after September 11 have recently drawn people’s attention to this issue. It has
been hotly discussed and debated that whether the national governments, under
the TRIPS Agreement, can exert the rule of compulsory licensing to force
multinational pharmaceutical corporations to cut back their drug prices, so as to make certain drugs, which are essential for public health, accessible to the general
public. This new development provides an excellent opportunity to review the
functions and limitations of the compulsory licensing regime. This article will
make use of the real situations and arguments emerging in HIV/AIDS and Anthrax
cases to analyze this issue more thoroughly, and thereby to formulate and
argue for some specific findings on the topic.
Abstract Article

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