Compulsory Licensing Under Patent Laws And Pharmaceuticals: Impact, Issues And Way-Out

Mayuri Ramchandra Taware, LLM, BBA LLB, DCL, DFS, Assistant Professor at KLE Law College, Kalamboli Navi Mumbai

ABSTRACT

Patent is a very important intellectual property as it encourages the inventor by providing monopoly right for commercial exploitation of his invention. But this scenario gives rise to high cost of product for the purpose of profiteering. However, in case of pharmaceuticals the patent owner cannot be permitted to exploit the patent unreasonably and to restrict the access of those in need. It has been observed that many companies with view to earn huge profits, sell their products only in developed countries which in turn results in shortage and overpricing in developing and underdeveloped countries.

The TRIPS agreement and Doha Declaration have thus proposed for provision relating to compulsory acquisition of certain patents on specified grounds. In tune with this, the Patent Act,1970 incorporates same provision.

There has been an instance of compulsory acquisition of patent relating to pharmaceuticals which has been discussed latter in this paper. The current pandemic situation has again given rise to debate about compulsory licensing of patented drugs considering the prevailing emergency like situation. Even the Supreme Court of India has asked the government to look into the viability of the option for procurement of life saving drugs.

Through this paper, it proposed to examine the various provision relating to compulsory licensing in international agreements and domestic legislations. Along with the challenges and the possible solutions for those challenges.

Keywords: Compulsory license, drugs and pharmaceuticals, TRIPS Agreement, DOHA Declaration, Indian Patents Act