The second coming of the public interest into patent law

In view of the rapid pace of technological, scientific and medical innovations in India and abroad, the intellectual property rights i.e., copyright, patent and other neighboring rights, have been recognized in Indian and foreign jurisdiction. Moreover, its scope and content have expanded pursuant to statutory amendments over the years. Growing recognisiont, expansion and protection of IPRs needs to harmonised with the public interest. Within this backdrop, copyright law, patent law etc. have made elaborate provisions and endeavours have also been made at international level to strike a balance between protection of individual’s IPRS and social interest. The present article tries to examine the contours of protection of IPRS at national and international levels with special reference to copyright law.

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Why SEPs have been involved in Antitrust Cases – From A Chinese Scholar’s Perspective

Zeitschrift für Wettbewerbsrecht ◽

10.15375/zwer-2017-0106 ◽

2017 ◽

Vol 15 (1) ◽

pp. 72-87 ◽

Cited By ~ 2

Author(s):

Xiaoye Wang

Keyword(s):

Public Interest ◽

Standard Setting ◽

Patent Law ◽

Antitrust Law ◽

Antitrust Enforcement ◽

Technical Standard ◽

The Public ◽

Injunctive Relief ◽

Standard Essential Patents ◽

Antimonopoly Law

AbstractIf patents have been included in a technical standard and thus have become standard essential patents (SEPs), the SEP holders normally have to commit to the Standard Setting Organization (SSO) to license their SEPs on fair, reasonable and non-discriminatory (FRAND) terms. Although the FRAND commitments already put constraints on the patentees, more and more disputes over FRAND licensing fees involving SEPs are reaching antitrust enforcement agencies and courts, perhaps due to the fact that the FRAND commitments are often not workable. As demonstrated in the case Huawei v. IDC in Chinese courts, SEPs have special characteristics compared to non-SEPs, i.e. the licensing of SEPs relates more to the public interest, the holders of the SEPs may be thought to have dominant positions in the licensing market of their SEPs, the holder of the SEPs often have made commitments to license on the FRAND terms, and the holder of the SEPs should be allowed to use the injunctive relief only in limited circumstances. This article also proposes that Article 55 of the Chinese Antimonopoly Law (AML) should be reconsidered because it exempts the undertakings who exercise their IPRs in accordance with the laws and administrative regulations on IPRs from the application of the AML. However, as this article shows, the excessive royalty requested or the injunction sought by the holder of SEPs may not violate the patent law, but nonetheless may violate the antitrust law.

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The COVID-19 Pandemic: Stress Test for Intellectual Property and Pharmaceutical Laws

GRUR International ◽

10.1093/grurint/ikab091 ◽

2021 ◽

Author(s):

Andreas Oser

Keyword(s):

Public Interest ◽

Data Protection ◽

Stress Test ◽

Legal Framework ◽

Patent Law ◽

Market Exclusivity ◽

Compulsory Licensing ◽

The Public ◽

Emergency Situations ◽

Legal Provisions

Abstract The COVID-19 pandemic poses a challenge to certain standards in patent law as well as in pharmaceutical law. This paper discusses questions as to whether and under what conditions government-ordered or privately claimed compulsory licensing can contribute to controlling the pandemic. The existing obstacles and conflicts under the current legal framework, such as a lack of international harmonization and a lack of coherence between patent law (compulsory licensing) and pharmaceutical law (data protection), are outlined and discussed. A possible solution could lie in a modernization of relevant legal provisions to create an internationally harmonized balance between the public interest in using important patents in the present and in future emergency situations and the interest of patent owners and data and market exclusivity holders in allowing exemptions within clearly defined limits. The article concludes with a discussion of conditions that may influence possible solutions.

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Building national initiatives of compulsory licences

Journal of International Trade Law and Policy ◽

10.1108/jitlp-07-2014-0015 ◽

2015 ◽

Vol 14 (1) ◽

pp. 23-48 ◽

Cited By ~ 2

Author(s):

Thaddeus Manu

Keyword(s):

Developing Countries ◽

Public Interest ◽

Dispute Settlement ◽

World Trade Organisation ◽

Patent Law ◽

Content Type ◽

Compulsory Licensing ◽

The Public ◽

National Initiatives ◽

Bayer Corporation

Purpose – The purpose of this paper is to examine the extent to which developing countries could build national initiatives of compulsory licences. Design/methodology/approach – The focus of this article is only on developing countries. The author reflects on the Indian patent jurisprudence regarding the operational relationship between the general principles applicable to working of patented inventions locally and the grant of compulsory licences. The discussion that follows is based on a review of the case: Bayer Corporation versus Natco Pharma with a view to presenting a model for developing countries to maintain that the public interest principle of patent law is well-founded in their domestic patent regimes. Findings – The analysis confirms that failure to work locally continues to be abusive of the patent right under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, and remains a valid condition on which to grant a compulsory licence. Thus, this reverses the often-contrary misconception that has become almost a unanimous assumption that failure to work basis for granting compulsory licensing would violate Article 27(1) of TRIPS and its enforcement provisions on patent. Originality/value – The author argues that as no member state has challenged the legality of Indian’s decision in the World Trade Organisation, under the dispute settlement understanding (DSU) system is more supportive of the contention that failure to work locally continues to be permissible under TRIPS and remains valid conditions on which member states can grant compulsory licences. This further adds weight to the understanding that nothing in the light of TRIPS would, in fact, preclude any possibility of developing countries amending their patent laws accordingly to maintain that the public interest principle underlining patent law is well-founded in their domestic patent regimes.

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Oligopolist Speech and the Public Interest in Pharmaceutical Patent Law Reform

Canadian Journal of Law and Society / Revue Canadienne Droit et Société ◽

10.1017/cls.2018.1 ◽

2018 ◽

Vol 33 (01) ◽

pp. 1-20

Author(s):

Chris Dent ◽

Yvonne Haigh

Keyword(s):

Public Interest ◽

Patent Law ◽

Patent System ◽

Law Reform ◽

Pharmaceutical Companies ◽

Pharmaceutical Patents ◽

The Public ◽

Pharmaceutical Patent ◽

Reform Processes

AbstractUnderstandings of the public interest underpin many law reform processes. The public interest is not a fully definable term and so reform bodies have to engage with a range of articulations of that interest. The negotiation of the different articulations, however, has not been explored empirically before. This article reports on a study of the claims to the public interest in a public Australian inquiry into potential abuses of the patent system by pharmaceutical companies. More specifically, submissions to the Pharmaceutical Patents Review are analysed and the results show “oligopolistic” tensions between competing views of the public interest—and with these views claiming primacy over more technical understandings of the issues. This lack of a single “public interest” allows dominant players to frame the debate to reflect their interests; and the tension between these players means that the debate, and the underlying problem, has not been subject to a resolution.

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