Journal of Intellectual Property Rights

K. D. Raju ¹

Affiliations
1 Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur-721302, West Bengal, IN

Abstract

Compulsory licensing (CL) (the TRIPS language is that other use without the authorisation of the right holder, A.3) is provided under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) regime under the World Trade Organization (WTO). Across the world, the CL on IPRs is granted on similar grounds like unreasonably exorbitant prices of a medicine; patent being not worked in the country; where substantial public interest is affected by the way in which IPR holder is exercising his rights etc. The Doha Declaration on Public Health provides special privileges for countries without manufacturing facilities.
Presently, more and more multinational pharma companies are turned into strategic alliances with domestic companies for manufacturing patented drugs in order to avoid CL. For example, the Swiss drug maker Hoffman La Roche has entered into an agreement with Emacure Pharmaceuticals for locally manufacturing three patented cancer drugs in India. Strides Arcolab has entered into collaboration with US Pharma Gilead Sciences for manufacturing HIV/Drugs. The first CL case in India has compelled multinational pharmaceutical companies to change their strategy of strategic collaborations and technology transfers with domestic companies. It is argued that a threat of CL encourages parties for entering into voluntary licensing and it is economical and an alternative option (not exclusive) for developing countries in providing essential medicines to poor people.

Keywords

TRIPS, Compulsory Licensing, Voluntary Licensing, Developing Countries.

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Soumya Prakash Patra ¹, K. D. Raju ¹

Affiliations
1 Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur, Kharagpur, 721 302, IN

Abstract

With the increased awareness and focus on safety systems in the automotive domain, it is imperative for regulatory authorities to not only bring in the latest technologies but also ensure reachability and affordability for all. However, the patents related to the latest safety features concentrate in the hands of a few technology leaders, thus rendering the technology access costly and scarce. In such a scenario, adapting principles of SEPs and their permit of use in FRAND conditions as in the telecom domain would create a symbiotic relationship between the technology producers and end-users. The first part of this paper deals with studying the relevant patent filing activities to sensitize the innovation happing in the field of automotive engineering in general and automotive safety in particular. The second part focuses on standards and its establishment process in India and its global context in terms of harmonization. The third part deals with the gap in the operation of Indian Standard establishing authorities and the Indian Patent system. This paper concludes by arguing that it is essential to adopt a cross-functional team to horizontally utilize the best of learnings of the telecom domain in terms of licensing SEPs under FRAND terms.

Keywords

Standards, Standard Essential Patent, Automotive Standards, Automotive Patents, FRAND, Licensing, SEP, Agreement on Technical Barriers of Trade, Standard Setting Organisations.

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