Research On Compulsory Licensing Under The TRIPs Framework

As an integral part of the patent system, compulsory licensing system plays a vital role in the patent system. It balanced the interest between patent holders and the public, and also promotes the technological progress. However, from the birth of patent compulsory licensing system which replaced the the patent revoke system until it became a part of international intellectual property convention——Agreement On Trade-related Aspects of Intellectual Property Rights (short for TRIPs following). Developed and developing countries engaged in a fierce debate for existing or abolition of the compulsory licensing system. For maintain its overseas interests, developed countries using political,economic and other kinds of finesse all the time to dominate the legal article setting in the process of TRIPs while impedes the use and implement of the compulsory licensing system in practice. It not only suppresses the development of patent compulsory licensing system, the certain value that the patent compulsory licensing should be, but also put the human rights of developing and non-developed countries who confront besetting of public disease into challenge on some degree.The current TRIPs sets many conditions on compulsory licensing system, and the language expression of article of TRIPs is also vague, lack of certainty which legal articles should be. These tedious conditions and vague languages make compulsory licensing system lack maneuverability in practice. The international community has begun to pay attention to this problem years ago and started to modify TRIPs, but the process is slow and even once stagnate. Implementation of Paragraph 6 of Doha Declaration and Amendments Protocol on TRIPs has passed under the efforts of every parties in recent years, this two documents have made a certain degree of modification and improvement on compulsory licensing system and made some breakthrough in the results, but the Protocol has not yet entered into force and when is unknown. So the legal binding of modified content is not enough and now the existing content which has modified is not comprehensive, to some extent still inadeguate. In addition, the cases of using compulsory licensing system in practice is very few, it's disproportional with the significant value and role of the compulsory licensing system.In view of this, I think that it should perfect compulsory licensing system on the following ways:clarify the certain language of the Article 31 of TRIPs, simplify the start up process of compulsory licensing and decrease the standard of compensation of compulsory licensing and so on.