What is Compulsory Licensing?

What is the News?

Kerala High Court has asked the Centre to respond to a plea for invoking the compulsory licensing. Other capable vaccine manufacturers will also be able to produce Covid-19 vaccines by the use of the compulsory license.

About Compulsory Licensing:
  • Compulsory licensing(CL) is a process that allows governments to license third parties (that is, parties other than the patent holders) to produce, use and sell a patented product or process. By that, producers can manufacture patented drugs without the requirement of consent of patent owners.
  • The WTO’s agreement on intellectual property –TRIPS allows countries to issue compulsory licenses to domestic producers.
  • In India, Compulsory licensing is allowed and regulated under the Indian Patent Act, 1970.

Section 84 of the (Indian) Patent Act,1970: It provides that after three years from the date of the grant of a patent, any person can apply for the compulsory license, on certain grounds:

  • the reasonable requirements of the public with respect to the patented invention have not been satisfied
  • the patented invention is not available to the public at a reasonably affordable price
  • Lastly, the patented invention is not used in the territory of India.

However, compulsory licenses can also be granted under exceptional circumstances.

Section 92 of the (Indian) Patent Act,1970: It authorizes the central government to issue a compulsory license at any time after the grant of the patent, in the case of:

  • National emergency; or
  • Extreme urgency; or
  • Case of public non-commercial use.

After the government issues a notification under Section 92 the companies can approach the government for a license. They can start manufacturing the patented drug by reverse-engineering the product.

Section 100 of the (Indian) Patent Act,1970:
  • It gives the central government the power to authorize anyone to use the invention for the purposes of the government.
  • Basically, this provision enables the government to license patents of the vaccine to specific companies. This is done to speed up manufacturing and ensure equitable pricing.

What is a Patent?

  • Firstly, a patent is an exclusive right granted for an invention. In other words, a patent is an exclusive right to a product or a process that generally provides a new way of doing something or offers a new technical solution to a problem.
  • Secondly, is a patent valid in every country? Patents are territorial rights. In general, the exclusive rights are only applicable in the country or region in which a patent has been filed and granted in accordance with the law of that country or region.
  • Thirdly, how long does a patent last? The protection is granted for a limited period, generally 20 years from the filing date of the application.

Source: Hindu Business line

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