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Compulsory Licensing: Balancing Intellectual Property and the Public Interest


In a recent presentation by Belén Rivera Lima, Head of the Intellectual Property Processes Department, and Mary Mar Samaniego, Head of the Criminal Liability, Operations, and Illicit Market Control Department, the topic of compulsory licenses was explored.


The presentation was organized by the International Society of Primerus Law Firms™,, a leading global alliance of independent law firms, whom we thank for their support and recognition of our expertise in this field.


Compulsory licenses are legal mechanisms that grant third parties the right to use patented inventions without the consent of the patent holder, with the aim of balancing intellectual property rights and the public interest. This article provides a brief overview of the concept of compulsory licenses, the international legal framework, and prominent cases in which compulsory licenses were granted.


Understanding Compulsory Licenses

Compulsory licenses are exceptional legal measures granted by governments to third parties to use patented inventions without the consent of the patent holder. These licenses are issued in exceptional circumstances such as public health emergencies, national emergencies, anticompetitive practices, or when the patent holder fails to adequately use or make the patented invention available to the public.


International Legal Framework

The international legal framework for compulsory licenses includes the Paris Convention for the Protection of Industrial Property and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) established by the World Trade Organization (WTO). While the Paris Convention indirectly influences the application of compulsory licenses by recognizing the need to balance the exclusive rights of patent holders and broader public interests, the TRIPS Agreement provides a well-defined framework with specific conditions and requirements for granting compulsory licenses.


Prominent Cases

During the presentation, two notable cases were highlighted to illustrate the application of compulsory licenses. The first case involved the cancer drug Nexavar in India, where a compulsory license was granted to increase access to affordable medicines. The second case took place in Colombia, where a compulsory license was issued to address the challenge of providing affordable access to HIV/AIDS drugs. In both cases, the requirements of the international legal framework were met, including good faith negotiations and adequate compensation.


Conclusion

Compulsory licenses play a vital role in balancing the protection of intellectual property rights and broader public interest. The international legal framework, including the Paris Convention and the TRIPS Agreement, provides guidelines and conditions for granting compulsory licenses. Prominent cases like Nexavar in India and access to HIV/AIDS drugs in Colombia demonstrate the practical application of compulsory licenses to address public health challenges and ensure affordable access to essential medicines.


Understanding the concept of compulsory licenses and their legal framework is essential for navigating intellectual property rights and promoting innovation while safeguarding public interests. As the intellectual property landscape continues to evolve, staying informed about compulsory licenses is crucial for individuals and organizations involved in innovation, healthcare, and intellectual property rights.

 

We extend our gratitude to the Association of Corporate Counsel, an invaluable platform that provides legal professionals with opportunities to connect, learn, and share ideas. Their dedication to advancing legal knowledge and promoting meaningful debates is worthy of recognition.


We thank everyone for their continuous support and commitment. Please do not hesitate to contact us for any inquiries or assistance in the field of intellectual property and compulsory licenses. Let's continue learning, growing, and making a positive impact together.


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Legal disclaimer

The content of this blog is provided for informational and educational purposes only and should not be considered legal advice. Regulations in Ecuador are subject to changes and updates that may affect the applicability and accuracy of the content published here. We do not guarantee that the information presented is accurate, complete or current at the time of reading. Therefore, past postings should not be construed as necessarily reflecting current regulations. We strongly recommend that you consult with our qualified attorneys for specific and personalized advice.

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