Journal of Intellectual Property Rights

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Compulsory Licensing For Public Health And USA’s Special 301 Pressure: An Indian Experience


Affiliations
1 National Law School of India University, Nagarbhavi, Bangalore, Karnataka- 560 072, India
 

The TRIPS Agreement concluded with a win-win situation where both the developed and developing countries could incorporate their supportive provisions. But the inclusion of a broad compulsory licensing provision, which is a supportive provision for the developing countries, was against the wishes of United States which was always against any form of restrictions on the rights of the patentee. In order to achieve its aims which it had failed in the TRIPS Agreement, USA began to use its new strategy to prevent countries from using this TRIPS flexibility, by the threat of trade retaliations through Special 301 Report. India being one of the victims of US strategy had many a times faced this intimidation from USA. The researcher has thoroughly analysed the Indian position in the Special 301 Report till 2018. Also, the researcher scrutinized the effect such an act on India and how the Indian Government responded to such situation. The researcher could found that such unwelcomed behaviour on the part of the luring market in the world had affected the public health and access to patented life saving drugs in India. Any such activity is in violation of principles embodied in the TRIPS Agreement and similar international commitments and also against the basic human right to health. The researcher suggests for a strong protest against such activities either by putting the matter before WTO-DSB or by forming a regional collaboration with other similarly affected countries and take retaliatory action against US.

Keywords

Compulsory License, TRIPS Agreement, Special 301, Trade Sanction, United States Trade Representative, WTO, U.S.-India Business Council, Pharmaceutical Research And Manufacturers of America, Indian Intellectual Property Appellate Board, Department of Industrial Policy And Promotion, Doha Declaration, Priority Foreign Countries, Priority Watch List, US Generalized System of Preferences.
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  • This ended up in an agreement between US and Brazil under which Brazil will notify the US government in advance if in the event that it finds it necessary to issue a compulsory license under Article 68 of its Patent Law.

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  • In 2001 US Government had threatened to issue a compulsory license to produce a stockpile of ciprofloxacin (Cipro) enough to treat 10 million people in the face of an Anthrax scare and also Number of United States Statues provide for compulsory license. For example, the United States government can issue a compulsory license for air pollution control patents (42 U.S.C. § 7608 (2006)), for nuclear power patents (42 U.S.C. § 2183 (2006)), for public health related patents (35 U.S.C. § 203) and for items needed for government use (28 U.S.C. S 1498)1, the Antitrust law of US. Adding the number, the United States routinely issues such licences, albeit through their courts which refuse to grant patent injunctions on grounds of public interest. This is nothing but a defacto compulsory license where the Courts deny injunctive relief for a patent infringement and allows the infringer to continue practicing the patented technology without the patentee’s consent.

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  • Compulsory Licensing For Public Health And USA’s Special 301 Pressure: An Indian Experience

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Authors

Aswathy Asok
National Law School of India University, Nagarbhavi, Bangalore, Karnataka- 560 072, India

Abstract


The TRIPS Agreement concluded with a win-win situation where both the developed and developing countries could incorporate their supportive provisions. But the inclusion of a broad compulsory licensing provision, which is a supportive provision for the developing countries, was against the wishes of United States which was always against any form of restrictions on the rights of the patentee. In order to achieve its aims which it had failed in the TRIPS Agreement, USA began to use its new strategy to prevent countries from using this TRIPS flexibility, by the threat of trade retaliations through Special 301 Report. India being one of the victims of US strategy had many a times faced this intimidation from USA. The researcher has thoroughly analysed the Indian position in the Special 301 Report till 2018. Also, the researcher scrutinized the effect such an act on India and how the Indian Government responded to such situation. The researcher could found that such unwelcomed behaviour on the part of the luring market in the world had affected the public health and access to patented life saving drugs in India. Any such activity is in violation of principles embodied in the TRIPS Agreement and similar international commitments and also against the basic human right to health. The researcher suggests for a strong protest against such activities either by putting the matter before WTO-DSB or by forming a regional collaboration with other similarly affected countries and take retaliatory action against US.

Keywords


Compulsory License, TRIPS Agreement, Special 301, Trade Sanction, United States Trade Representative, WTO, U.S.-India Business Council, Pharmaceutical Research And Manufacturers of America, Indian Intellectual Property Appellate Board, Department of Industrial Policy And Promotion, Doha Declaration, Priority Foreign Countries, Priority Watch List, US Generalized System of Preferences.

References