Measures
for Granting Compulsory License for Exploitation of
Public Health Related Patents
On November
29, 2005, China's State Intellectual Property Office (SIPO) issued the
Measures for Granting Compulsory License for Exploitation of Public
Health Related Patents. The measures were promulgated in accordance
with the WTO Doha Declaration on TRIPS and Public Health.
According to the measures, a compulsory license may be granted to exploit
the patents relating to pharmaceutical products, which have effects
for the treatment of some infectious diseases. The infectious diseases
include AIDS/HIV, pulmonary tuberculosis and malaria. For the purpose
of granting a compulsory license, the patents can be product patents
covering the pharmaceutical products, or process patents for producing
the pharmaceutical products. The patents for producing the active ingredients
of the pharmaceutical products, and those for producing the diagnosis
reagents used for application of the pharmaceutical products are also
subject to a compulsory license.
According to the Regulations on Compulsory License for Exploitation
of Patents issued by the SIPO in 2003, only the governmental authorities,
instead of any corporations, are qualified to request the SIPO to issue
a compulsory license. A compulsory license may be issued to produce
the pharmaceutical products in China, or to import the products. At
the request of another country, the SIPO may also issue a compulsory
license to produce the pharmaceutical products in China and to export
the products to the country. Noticeably, parallel importation of products
having effects for the treatment of the infectious diseases is allowed,
without granting a compulsory license.
The measures will come into effect on January 1, 2006.
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