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17 Manchester J. Int'l Econ. L. 315 (2020)
Compulsory Licensing for Patented Medicines: A Comparative Legal Analysis of India, Brazil and Thailand

handle is hein.journals/mjiel17 and id is 331 raw text is: Manchester Journal of International Economic Law Volume 17, Issue 3: 315-337, 2020 Compulsory Licensing for Patented Medicines: A Comparative Legal Analysis of India, Brazil and Thailand Van Anh Le* and Mark Hylandt ABSTRACT: This article aims to examine the legal regime of compulsory licensing in light of the TRIPS Agreement and re-evaluate its effectiveness in widening access to medicine in developing countries. It provides a fascinating insight into the use of this mechanism in Brazil, Thailand, and India as their practice has had a sizeable impact on access to medicine discussion which makes them appealing case studies. This work concludes that in India, compulsory licences have mainly served its thriving pharmaceutical industry while in Brazil and Thailand, they were used to respond to their national health needs. 1. INTRODUCTION Patent protection and access to medicine has become a thorny issue ofthe 21 century following the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995.1 This multilateral agreement requires mandatory patent protection for any inventions in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application,2 for a minimum of 20 years.3 This has resulted in a profound change in the pharmaceutical industry because prior to TRIPS, patenting medicine was optional and the protection term also varied from one country to another. An example being Switzerland, which in spite of being a developed country, did not allow patent protection for pharmaceutical products until 1977,4 though its patent system was first adopted in 1888.5 In a similar vein, medicine patents were only made available in Italy in 1978 when the Italian Supreme Court declared the Law on Industrial Inventions of 29 June 1939 unconstitutional Van Anh Le, Teaching Fellow, Law School, Warwick University, United Kingdom, Van-Anh.Le@warwick.ac.uk. t Mark Hyland, Law Lecturer, College of Business, Technological University Dublin, Ireland, mark.hyland@tudu blin.ie. i Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (15 April 1994, as amended on 23 January 2017) LT/UR/A-1C/IP/1. 2 Ibid., article 27. 3 Ibid., article 33. 4 The Patents Act of 25 June 1954, as amended by Act of 17 December 1976. s The Patents Act of 29 June 1888. However, this Patent Act was viewed as 'probably the most incomplete and selective patent law ever enacted in modern times'. Eric Schiff, Industrialization Without National Patents: The Netherlands, 1869-1912; Switzerland, 1850-1907 (Princeton University Press, 1971), at 93. 315

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