Ipshita Khatri, LLM, Faculty of Law, Delhi University
ABSTRACT
Compulsory licences are a way to put check on the monopoly granted to the patentee for the disclosure of his invention. Compulsory licence provisions in patent law are always hailed as an effective mechanism to curb the abuse of exclusive rights by the patent holder. Doha declaration explored the way for compulsory licensing around the globe and also insisted that TRIPS agreement does not and would not prevent any member from taking measure to protect public health. After Doha Declaration many countries aggressively amended their patent regime for purpose of compulsory licensing. Compulsory license can be issued to a generic company on different grounds to fulfill the patient need and to improve quality of life. Before Doha declaration, big pharmaceutical companies are continuously taking the advantages to earn money by sustaining monopoly because of the rigid patent protection Doha declaration put emphasis on compulsory licensing to facilitate the use of patent without any authorization from patent holder. After TRIPS, the Indian patent laws were amended to allow patenting of product patents. This step also gave more flexibility to the patentees with availability, quantity and price value of the drugs. As the result of this the Indian Patent Laws incorporated many comprehensive provisions for compulsory licensing to prevent misuse of patent rights. This paper talks about the provisions of compulsory licenses under TRIPS and the Indian patent law. It highlights the different provision under the act in which compulsory licenses are granted. Along which this it also mention the procedure for grant of compulsory licenses, its terminations and conditions. It mentions the cases in which compulsory licences was or was not granted.
Keywords: Compulsory Licensing, Patents laws, TRIPS, Doha declaration
