Patents report makes a number of provisions for compulsory licensing

the report of the joint committee of both houses of parliament on the patents (second amendment) bill, has left plenty of room for compulsory licensing of patented drugs after 2005. compulsory licensing allows the government, under certain circumstances, to grant a licence to firms other than the patent-owner to manufacture a product even when it is patented, usually against the payment of royalty to the patent-owner. when applied to drugs, these provisions have been made with the intention of satisfying public health requirements and encouraging the transfer of technology. the committee appears to have drawn from the experience of countries like south africa, where most hiv/aids patients are unable to afford high-priced anti-aids drugs in spite of the rapidly escalating hiv/aids epidemic. a licence issued to other firms in such a situation is expected to bring down drug prices considerably. significantly, the compulsory licensing provisions have been put in place even before the government actually amends the law to allow for product patents on medicines. as et reported on december 22, this provision allowing drugs to be patented is not there in the bill or the report. according to the report, a copy of which is with et, an entire chapter (chapter 16) on compulsory licensing provisions for various patented products, is proposed to be included in the bill, spelling out when, how and for how long a licence can be granted to a company other than the patent-owner on a non-exclusive basis. while the powers to grant a compulsory licence will rest with the patent controller (pc), the central government in circumstances of national emergency or circumstances of extreme urgency or in case of public non-commercial use has the power to necessitate the issue of licences to firms other than the patent-owner. cases where the pc grants licences include the inability of the patent-owner to satisfy the reasonable requirements of the public with respect to the patented innovation, and the unavailability of the patented invention to the public at a reasonably affordable price, among others. however, unlike the laws of other developing countries like brazil and argentina, licences will not be issued for the patentee's failure to manufacture the patented drug partially or wholly in the country within three years of the patent being granted. there is also no clear definition of what a reasonably affordable price is. for instance, the argentinean law on patents clearly says a licence could be considered when the price for a patented product is excessive in relation to the market average or is discriminatory, particularly where alternative proposals exist for supplying the market at prices significantly lower. however, situations where the reasonable requirements of the public can be seen as not being satisfied have been spelt out. both the patentee and the firm that have applied for a compulsory licence are given time to represent themselves before the pc prior to the grant of a licence. conditions for the revocation of a patent due to non-working are also detailed.

Patents report makes a number of provisions for compulsory licensing

THE report of the joint committee of both houses of parliament on the Patents (Second Amendment) Bill, has left plenty of room for compulsory licensing of patented drugs after 2005.

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