The Compulsory License Regime in India

The Compulsory License Regime in India

Author Name : (Dr.) Monica Raje

ABSTRACT

The Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPs) contains flexibilities that could be utilized to alleviate the negative impact of patents on access to pharmaceutical products. Amongst these flexibilities is the right of a Member State to grant compulsory license. Compulsory license is an authorization given to a third party by the Controller General to make, use, sell a patented product or process without the prior consent of the patent owner. This paper seeks to study the provisions relating to compulsory license under the Patents Act, 1970. The Act provides for three grounds namely non availability, lack of affordability and non-working, on the existence of which a compulsory license may be granted. The paper will seek toanalyzethese three grounds through the decision of the Intellectual Property Appellate Board (IPAB) in the case of Bayer Corporation v. Natco Pharma Ltd. Finally, the paper will seek to point out to what extent the provisions of compulsory license under the Act have been successful in meeting the objective of the Act.

Key words: Compulsory license, working, reasonably affordable price