Authorize others to engage in the making and distributing of the phonorecords. What must be contained in a notice of intention to obtain a compulsory license. Compulsory licensing may be established through negotiating licenses that provide terms within the parameters of the compulsory license. Compulsory licensing allows for the use of protected in this case, ed material without the prior permission of the owner of the right. Compulsory licensing of drug products in developing countries.
Compulsory license for maing and distributing phonorecords 3. The trips provides for compulsory licenses of patents in article 31, but also provides a number of restrictions on the use of compulsory licenses. Compulsory licensing and government use a comparative perspective prof. Compulsory license for maing and distributing phonorecords 4 when do i serve a notice of intention to obtain a compulsory license. In this blog post, vikram chaudhuri, student of department of law, calcutta university, and the diploma in entrepreneurship administration and business laws by nujs, analyzes the concept of a compulsory license under the patents act, 1970. This paper reports on a number of recent examples of the use of compulsory licenses, in both developed and developing economies. Sam can take the necessary action to have little jimmys compulsory license revoked and prevent his version of the recording from being distributed or played any further. The patents act, 1970 was amended three times in 1999, 2002, 2005 respectively to include the concept of compulsory. As a point of structure, i will turn first to the history of the compulsory licensing remedy in the us and the eu. A compulsory license is a statutory licensing agreement in which a licensing fee is paid for the use of a work subject to u.
Voluntary licenses can take many forms, and may be bilateral between a single licensor and licensee or multilateral between multiple licensors and licensees, as through a patent pool. Compulsory licensing is a safeguard that is rarely needed. Next, i will discuss the policy and practical issues raised by compulsory licensing, particularly in the nonmerger, nonconsent context. Compulsory licencing is one of several safeguards in the. In many cases the remuneration or royalties received for a ed work under compulsory license are specified by local law, but may also be subject to negotiation. Compulsory licensing of pharmaceutical patents in developing. Compulsory license for making and distributing phonorecords 2 owner cannot be contacted, the person intending to record the work or make a dpd can use the compulsory licensing. Later, little jimmy, a punk rap star, acquires a compulsory license and records sams song but changes the words and eliminates the melody. Frequently asked questions about compulsory licenses. The asiapacific research and training network on trade artnet is an open regional network of research and academic institutions specializing in international trade policy and facilitation issues. Compulsory license is the term generally applied to a statutory license to do an act covered by an exclusive right without the prior authority of the right owner. Assessing the barriers and secondary effects on global public health angela morley executive summary fewer than one in three people suffering with advanced hiv in sub. The need and scope for guidelines are in part determined by the scope and content of the statutory provisions. These difficulties persist despite relevant efforts made by some world trade organization wto members.
Compulsory licensing of drug products is a very hot issue in todays pharmaceutical world. Compulsory licensing of patents background a compulsory licence is an order for a patentee to grant a licence to another party, allowing that party nonexclusive rights to exploit the patented invention. Make a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved. Jun 25, 2009 this paper uses an exogenous event of compulsory licensing after world war i under the trading with the enemy act to examine the effects of compulsory licensing on domestic invention. Compulsory licensing often did not produce lower prices for. The grant of a compulsory patent license typically requires the sanction of a governmental entity and provides for compensation to the patent owner. In cases where a compulsory license is granted for the public interest, the scope of such compulsory license shall be. Feb 16, 2016 trips covers compulsory license in detail. Compulsory licensing is when a government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the patentprotected invention itself. Petra moser abstract compulsory licensing allows countries to produce patented foreign innovations. Compulsory licensing of a drug product allows the government to issue the license of manufacturing the drug to a third person. Circular 73 compulsory license for making and distributing. If one of the grounds for compulsory licensing is established, the comptroller may order the grant of a licence on such terms as the comptroller decides or endorse the patent licences of right.
The compulsory license red herring 5 details of each order that it aims to fulfil. Article 31 of the trips agreement allows governments to grant compulsory licenses, as long as certain procedures are followed and certain terms are ful. Recent examples of the use of compulsory licenses on patents1. Indias maiden experience savita gautam meghna dasgupta.
Compulsory license for making and distributing phonorecords. Section 2 cites global instances where compulsory licensing has been used in the posttrips era. Compulsory licensing provisions may act as a deterrent against refusals to licence on voluntary terms. The current paper discusses the various issues and challenges of indias first compulsory licensing case. Compulsory license definition of compulsory license by. Many low and middleincome countries experience difficulty in using compulsory licensing as a measure to balance patent protection and access to medicines. Saharan africa received lifesaving antiretroviral drugs in 2007 statistical. There must be an incentive to invent because commercialization of new ideas involves money and effort 8. The challenge to the grant or refusal of compulsory licenses will be judicially adjudicated and an appreciation of legal considerations relating to the exercise. Indeed, there is no requirement that compulsory licenses be limited to cases involving health care problems at all. Where a patent is endorsed licences of right, any person is entitled to a licence under the patent.
It then outlines the scope of the compulsory licensing regime as it stands today. Voluntary licensing is often contrasted with compulsory licensing, in which a government authority grants a thirdparty a license to the ip. Hatchbob goodlatte music modernization act mma was signed into law. The amount of royalties set by the state granting a compulsory license cannot. Yosick this note compares compulsory patent licensing provisions in the united states and modern, foreign nations. Oct 01, 2010 this report is a descriptive one that explores the system of compulsory licensing in india.
The term compulsory license refers to the grant of permission for an enterprise seeking to use anothers intellectual property without the consen t of its proprietor. Marchin rights and compulsory license in the united states. Differenceindifferences analyses of nearly 200,000 chemical inventions suggest that compulsory licensing increased domestic invention by at least 20 percent. An noi must be served before or within thirty days after making, and before distributing, any phonorecords of the work. Many foreign nations have provisions that allow for compulsory licensing of patents. Compulsory licensing of copyright in india intepat ip. Compulsory licensing of pharmaceuticals and trips wto. It is one of the flexibilities in the field of patent protection included in the wtos agreement on intellectual property the trips traderelated aspects of intellectual property rights agreement. Compulsory licensing is defined by the wto as compulsory licensing is when a government allows someone else to produce the. Reinaldo guimaraes, who agrees that the price of the treatment of hepatitis c is too costly, believes instead that reapplying the measure of compulsory license is not the solution.
In particular, it deals with the grounds for compulsory licensing, procedure involved, decisions on compulsory licensing and trips compliance issues. These examples,althoughoflessrelevancetoour model, indicate the increasingly wider use of compulsory licensing. It is one of the flexibilities in the field of patent protection included in the wtos agreement on intellectual property the trips trade. Comments on draft measures for the compulsory licensing of. Compulsory licensing compulsory licensing is a provision under the agreement on traderelated aspects of intellectual property rights trips. After doha declaration many countries aggressively amended their patent regime for purpose of compulsory licensing. Simply stated, when the us government funds research that results in patents, it obtains rights to those. Individuals and businesses can safely reuse creative content without worrying about liability, so long as they are willing to follow these rules and pay the license fee. Section 1 elaborates on the relevant international and national legal provisions for compulsory licensing. Compulsory licensing developments in thailand in a bid to improve public access to medicines, thailands ministry of public health issued compulsory licences for a number of patented drugs without negotiating with the patent owners beforehand.
Compulsory licensing developments in thailand the healthcare. Compulsory licensing provisions give states the power to force a pat. Uscbc believes that the call for comments represents a positive and constructive effort by the. Draft measures for the compulsory licensing of patents the uschina business council uscbc and its member companies appreciate the opportunity to submit comments on the draft measures for the compulsory licensing of patents, issued on october 12, 2011. Notice of intention to obtain a compulsory license section 115.
In response, cellpro first asked the court for a compulsory license and then petitioned the national institutes of health nih to march in on the theory that johns hopkins had failed to effectively commercialize the patented invention. Compulsory license is not a remedy or a drug to be taken daily, argues guimaraes. Compulsory licenses came into force when the developing countries couldnt afford the cost of technology to produce medicines and high price of the patented medicines. Jul 01, 2012 compulsory licensing chennai3rd floor, creative enclave, compulsory licenses are licenses that are granted by a148150, luz church road, mylapore, government to an individual or company seeking to use chennai 600 004. In particular, it examines the historybackgroundrationale of the present compulsory licensing regime in india. The north american free trade agreement nafta has its own provisions for compulsory licensing of patents, which are somewhat more restrictive than those in the trips. Patent fundamentals the patent system is grounded in article i, section 8, clause 8 of the u. What is the concept of compulsory license under the patents. Comments on discussion paper on compulsory licensing 25.
1621 449 395 194 186 723 86 1586 295 350 1407 1051 636 644 1649 53 620 843 1561 123 821 718 420 704 1219 51 1329 1617 568 115 562 1383 1370 713 680 1633 946 432 1177 678 868 1141 1155 975