Patent Compulsory Licensing Study

Compulsory patent licensing system is regarded as one organic part of the patent system, and even the tool which has saved the patent system. The theory of interest balance runs through its evolution history. The objective of the system is to balance the interest of the patentee and the social public interest, the technology innovation and the technology dissemination, and the interest of the developed countries and the developing countries. So compulsory patent licensing is not the reversal of the traditional intellectual property theory, but the"trump card"to reduce the negative influence of the patent monopoly. Many countries have issued compulsory patent licensing to maintain public interests, and achieved good effects in practical application. But compulsory patent licensing has not been issued yet in our country, and thus the system function has not been achieved. The implementing regulations of the Patent Law and administration regulations specified the patent compulsory licensing system. But several questions should be considered to achieve the system function, for instance, is the opportunity of issuing compulsory patent licensing has matured? How to perfect the regime on the system level? How to comprehensively consider the political, economical and cultural factors in order to establish the external environment? Trying to answer these questions is the conception of this thesis.The thesis is composed of four parts. The first part is the summary of the compulsory patent licensing system. The definition and the characteristics of the system are presented first. Then, the system function is been interpreted in two perspectives: one perspective is to analyze the interest balance of the compulsory patent licensing system, and another perspective is the economic analysis of the system.The second part is the evolution history of the system, which has been divided into four stages. Compulsory licensing was the compromise of revocation of Patent. The Paris Convention harmonized the compulsory patent licensing system in the international level, but TRIPS Agreement reversed the trend. The results of 2001 Doha Deelaration,2003 General Council Decision and 2005 Amendment of TRIPS Amendment in respect of Public health embodied the requirement of enforcing technology transfer through compulsory patent licensing.The third part is the comparative study of several typical countries, as America, Britain, Canada and India.The fourth part is to discuss how to perfect the system. After presented the implementing regulations of the Patent Law, influence factors of the system implementation are analyzed in two perspectives: system level and external environment. Then, several relevant suggestions are put forward on how to perfect the system on the system level and how to comprehensively consider the political, economical and cultural factors in order to establish the external environment.