India: Bypassing Patents Amid Pandemic: A Cautious Approach?
The grant of patent rights by the government cannot be easily taken away by the government itself. Even if taken the support of the international agreement of TRIPS, we find only exceptional circumstances for this bypass namely compulsory licensing.
- In the UK, we find that compulsory licensing can be granted after three years of the grant of the patent, thereby making it only beneficial for older patents. It is necessary to show that the demand is not met on reasonable terms. For the newer ones, the UK government can rely on Crown Use provision, but still, it needs to be proved that the demand is not met.
- In Germany, the government is more likely to rely upon the ‘coronavirus crisis package’ which has amended the Infection Protection Act, providing the Health Ministry to use patents in the interest of the public during the national epidemic.
- Similarly, in Austrian Province, the provision of compulsory licensing can be used on the premise of broad public interest and removing the need for prior negotiation in a situation of a ‘national emergency’ or ‘other circumstances of extreme urgency’.
- In the US, we have two mechanisms, first being the Title 28, US Code Section 1498, and the other one being March-in rights under the Bayh-Dole Act. For using the first one the government must ensure that the use is by or for the United States. The second one is having a broader scope whereby the government is satisfied that the reasonable needs are not fulfilled.
- In India, we have the provision of compulsory licensing under Chapter XVI of the Patent Act 1970 talks about the compulsory licensing in which Section 84 to 92 deals with the same. Under Section 84, the pre-requisite of the compulsory license on the requirements that the patented invention has not satisfied or it is not available at a reasonable price or it is not available in the territory of India. Under Section 87 and 88, the procedure and power to the controller for granting a compulsory license are specified.