Implications of the Doha Declaration on the Trips Agreement and Public Health - Health Economics and Drugs Series No. 012
(2002; 56 pages) [French] [Spanish] View the PDF document
Table of Contents
View the documentForeword
View the documentAcknowledgements
View the documentAbbreviations and acronyms
View the documentExecutive summary
View the documentIntroduction
View the documentScope
View the documentThe role of TRIPS and IPRs
Open this folder and view contentsPublic health measures
Open this folder and view contentsFlexibility in TRIPS
Close this folderMembers with insufficient or no manufacturing capacities
View the documentAddressed problem
Open this folder and view contentsPossible approaches
View the documentSafeguards
View the documentCompulsory licence in the importing country
View the documentEconomic feasibility
View the documentLegal implementation
View the documentTransfer of technology to LDCs
View the documentExtension of transitional period for LDCs
View the documentSpecial treatment under TRIPS
View the documentLegal status of the Doha Declaration
View the documentIssues not covered in the Declaration
View the documentConclusions
View the documentAnnex 1 - Doha Declaration on the TRIPS Agreement and Public Health
View the documentAnnex 2 - Levels of development of pharmaceutical industry, by country
View the documentReferences
 

Compulsory licence in the importing country

In order to import a patented product, the country in need may apply the international exhaustion principle and allow parallel imports or grant a compulsory licence either to import or to manufacture the protected product. The understanding given by the Members to paragraph 6 in some of the proposals mentioned above, clearly implies that a compulsory licence can be satisfied by imports, and not only by local production101.

101 Some national laws require, however, the compulsory licencee to locally produce the invention. Unless amended, such legislation can make illusory a solution under paragraph 6 based on either Article 31 (f) or Article 30, since in both cases the assumption is that the compulsory licencee is able to import in order to execute his licence.

A review of the patent laws of seventy developing countries and LDCs (Table 2) indicates that the majority provide for compulsory licences in case of failure to exploit or to do it on reasonable terms - in line with Article 5A of the Paris Convention - while only 13 provide for grounds relating to public interest and/or national emergency or health emergency.

Table 2

Grounds for compulsory licences in developing countries and LDCs

Grounds for granting compulsory licences

Countries providing such grounds

Total

Failure to exploit or exploit on reasonable terms

16 + OAPI

32

Public interest

8 + Andean

13

National emergency or health emergency

8 + Andean

13

Remedy anti-competitive practices, unfair competition

6 + Andean

11

Failure to obtain licence under reasonable terms

4

4

Failure to work domestically

2

2

No apparent provisions

2

2

Source: Thorpe, 2002.

Though more detailed research on national laws is required, this information suggests that in order to make operative any solution under paragraph 6, many developing countries and LDCs would need to amend their national patent laws.

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