Reflections on the Function of Compulsory Licensing of Pharmaceutical Patents and Its Implementation in the Context of COVID-19:A Comparative Study Between China and Latin American Countries  

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作  者:MA Le 

机构地区:[1]East China University of Political Science and Law,Shanghai,China

出  处:《US-China Law Review》2022年第9期395-407,共13页美中法律评论(英文版)

摘  要:Evolving from the Paris Convention for the Protection of Industrial Property to the TRIPS Agreement,international law basis for the compulsory licensing had been established and improved.Notably,after the Doha Declaration on the Protection of Public Health,special compulsory licensing for export became the new hope for accessibility and affordability of pharmaceuticals to ease public crisis.Accordingly,countries,especially developing ones,have legalized compulsory licensing of pharmaceutical patents through their domestic laws as a means of response to public health crises.Despite this,the history of implementation has not shown that the legitimacy and consensus of the system have been effectively unleashed.The few instances of implementation have been accompanied by questions and controversies.Even in the case of the COVID-19,compulsory licensing has not been the effective choice to address vaccine access.Special compulsory licensing for export did not show up as expected either.In the context of global public health crisis by COVID-19,it is the right time and with necessity for reflecting the function of compulsory licensing and exploring effective ways for its implementation.China and Latin American countries are both developing territories with identically tremendous demand for patented pharmaceuticals,and their domestic mechanisms for compulsory licensing of pharmaceutical patents share commonalities as well as differences.With regards to implementation mechanism,China established sound system as procedural rules which provides stakeholders with transparency and predictability.In contrast,Latin American countries as Brazil and Ecuador set good examples for enforcing compulsory licensing under its own system.Comparing the two will benefit each other in terms of better functioning compulsory licensing.

关 键 词:public health pharmaceutical patents compulsory licensing special compulsory licensing for export 

分 类 号:F75[经济管理—国际贸易]

 

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