Shatarup Banerjee, School of Law, Christ (Deemed to be University), Bangalore
ABSTRACT
Tangible property has played a major role in human civilization. Various thoughts and stories have been proposed concerning property, such as Marxism and Capitalism. But in our modern world, intangible property, also called intellectual property, like patents, copyrights, trademarks, etc., has started playing an equally important role. Intellectual Property Rights are a set of rights exclusively given to creators of new inventions, literary works, logos etc. Intellectual Property Rights are governed by a global agreement called the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, based on which states that are signatories to this agreement pass statutes to give effect to this agreement. One such IP is patents, which are certain rights that are granted on new inventions. The pharmaceutical industry is a major user of patent rights. These patent rights can be removed by a process called compulsory licensing. The research paper examines the framework of compulsory licensing under the TRIPS Agreement and the application of compulsory licensing in India, particularly concerning pharmaceutical patents. Compulsory licensing allows governments to authorize the use of patented inventions without the patent holder's consent in specific situations, such as public health emergencies. The paper analyzes the provisions under TRIPS, which consist of Articles 31 and 31bis and legal provisions within India's Patent Act, especially Section 84, which states the conditions granting compulsory licensing. Through a detailed exploration of landmark cases, such as Bayer vs. Natco, the paper discusses the system of compulsory licensing regime that is followed in India and how it is different from the vision of compulsory licensing that was envisaged in TRIPS, along with the challenges and criticisms of the system. This paper suggests that compulsory licensing should be used along with other methods, such as patent pooling and voluntary licensing by the government for the promotion of public health and safety and to make drugs more affordable for the people of India.
Keywords: Compulsory Licensing, Intellectual Property Rights, The Patent Act 1970, TRIPS
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