| Summary: | 碩士 === 國立中興大學 === 科技法律研究所 === 96 === As a member of the WTO, Taiwan’s patent system needs to observe TRIPs and the protocols related to the WTO. Nevertheless, both the “Koninklijke Philip CD-R”and“Tamiflu” cases reveal that compulsory licensing of the patent system in Taiwan does not fulfill the principle of TRIPs in the area of patent protection. In CD-R case, the reasons that Taiwan Intellectual Property Office(TIPO) granted a compulsory license to applicant, Gigastorage Crop., not only caused nationwide criticism, but has brought about EU Trade Barrier Regulation investigations. The purpose of this paper is to find a way in which the compulsory licensing system of the Patent Act of Taiwan can come into agreement with TRIPs. In reviewing TRIPs Article 31 and the patent protocols of the WTO, and surveying the legislation of patent use by member governments of the WTO and their internal patent laws, it was found that developed countries that have long histories of patent systems have both incorporated “Government Use” and “Compulsory Licensing” systems in their legislations.
According to TRIPs and the Paris Convention for the Protection of Industrial Property, the implementation of compulsory licensing is only applicable in cases to counterbalance patent abuse when exploration of patent rights in these cases would lead to unfair competition or damaging to social order. Due to the fact that compulsory licensing is related to the rights of private property involving the concept of civil law, it is not appropriate to leave the administrative bureau such as TIPO to make the final decision. This thesis suggests that the government should consider having the courts decide whether or not compulsory licensing cases should be put on trial for approval. This would restrain patent abuse and keep compulsory licensing fair and balanced. While researching answers to “The Protocol Amending the TRIPs Agreement of the WTO”, it became evident that the Taiwan Intellectual Property Office amended the Draft of the Patent Act Article 76-1 and 76-2. In order to present a workable suggestion for compulsory licensing, review of law-making as well as policy suggestions were made to amend the Draft and suggest amending the relevant articles so as to bring future policy concerning pharmaceuticals for use in national emergency situations in line with the WTO protocols.
The design of the legislation for “Government Use” and compulsory licensing enables the government to reconsider the following issues: the balance between the public interest and individual property rights, the scale of compensation, the definition of emergency, the need for medical support in national emergencies, and use for military and national defense purposes. Furthermore, export of generic pharmaceuticals produced under compulsory licensing for humanitarian ends and the impact on the local industry in Taiwan with respect to new drug access and the possible deferment of foreign investment are critical considerations to be addressed.
After finding the existing problems and flaws in the Patent Act and the Draft, this paper makes some recommendations regarding “Government Use” and compulsory licensing, with the desire to present an equitable patent system.
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