E-drug: Compulsory licensing (cont'd)
---------------------------------------------
In reply to Dr Offerhaus' comments the following:
Compulsory licensing is the granting of a license to a third party
without the consent of the patent holder. It is a judicial or
administrative procedure and laid down by law. Article 31 is the
"compulsory licensing article" in the TRIPs. In order to make use of it
WTO members need to translate it into national legislation.
It has little to nothing to do with Euro speak. Compulsory licensing is
as old as patent laws themselves are.
The Paris Convention for the Protection of Industrial Property of March
20, 1883, as revised (several times). Article 5 deals with compulsory
licensing. Among the provisions are Article 5(A)(2), which says:
"Each country of the Union shall have the right to take legislative
measures providing for the grant of compulsory licenses to prevent the
abuses which might result from the exercise of the exclusive rights
conferred by the patent, for example, failure to work."
It is a legal tool to remedy negative effects of patent monopolies. To
give you an example: A patent holder has the monopoly and the
exclusive rights to do with the invention what he or she wants.
Imagine that the inventor and subsequently patent holder of an
effective AIDS treatment decides not to produce and market it. In
such a situation the government should be able to intervene.
Compulsory licensing gives that option.
Another situation is a country that actually has the infrastructure to
provide HIV AIDS treatment but where the price of the drugs is the
single most important barrier. In the case the patent holder of the
medicines are not willing to bring down the price the government may
grant a compulsory license to a manufacturer or importer to produce
the drugs.
I refer to James Love's fact sheet on compulsory licensing for those of
you who would like to have more
information:http://www.cptech.org/ip/health/cl/faq.html
As a result of the very effective actions of aids campaigners,
international coalitions of public health advocates and others, the
United States government has announced that it will no longer
pressure countries to drop the compulsory licensing provisions from
their legislation.
Ellen 't Hoen LL.M.- International Drug Policy Consultant
e-mail: ethoen@compuserve.com
P.O. Box 15605
1001 NC Amsterdam
The Netherlands
tel: + 31 20 620 1743
fax: + 31 20 6201581
mobile: + 31 (0) 6 5573 5472
--
Send mail for the `E-Drug' conference to `e-drug@usa.healthnet.org'.
Mail administrative requests to `majordomo@usa.healthnet.org'.
For additional assistance, send mail to: `owner-e-drug@usa.healthnet.org'.