[Ip-health] KEI TPP Briefing note 2015:1 Compulsory licenses and the 3-step test

Jamie Love james.love at keionline.org
Fri May 15 05:02:10 PDT 2015


KEI TPP Briefing note 2015:1 Compulsory licenses on patents and the 3-step

14. May 2015

This is a briefing note prepared for TPP negotiators, addressing a single
but important issue, the standards for issuing compulsory licenses in the
TPP. A copy of the complete briefing note, which is available here, in
(PDF) format, explains how the elimination of one article on exceptions
from the TPP draft IP chapter has radically changed the standards for
compulsory licenses, shrinking the space for actions that are necessary to
address abuses of patent rights, or outcomes that are contrary to public


This is a technically complicated but consequential issue. The following
are a few quotes from the beginning and the end of the KEI briefing note:
KEI TPP Briefing note 2015:1 Compulsory licenses and the 3-step test


May 14, 2015

Main point: The TPP IP Chapter will limit the allowable exceptions to a
patent holder’s exclusive rights, as they relate to compulsory licenses and
other non-voluntary authorizations to use patents. At risk are the
flexibilities in Article 31 of the TRIPS. This can and should be fixed.
The World Trade Organization (WTO) TRIPS agreement creates obligations to
grant patents, and creates a set of exclusive rights associated with those

The TPP proposes to expand the obligation to grant patents, requires
extensions of patent terms beyond 20 years, expands the rights associated
with a patent, and creates stricter obligations to enforce those rights.

Like TRIPS, the TPP also provides for exceptions to the exclusive rights of
a patent. But some versions of the TPP IP Chapter text propose to limit the
space for exceptions. In particular, the May 16, 2014 version of the TPP IP
Chapter proposed significant and perhaps radical restrictions on the use of
compulsory licensing of patents. In this version of the negotiating text,
the TPP would limit compulsory licenses to cases where the compulsory
license does not “unreasonably conflict with a normal exploitation of the
patent,” a standard not used in the TRIPS for compulsory licenses.




The ability to grant a compulsory license on a patent is an important
safeguard, and one that all TPP members will want to use, or threaten to
use, in order to address abuses of patent rights or outcomes that are
contrary to public policy goals. If the negotiators don’t fix the problems
in the current text, the space for compulsory licensing will be much
smaller, and it will be far more risky to issue compulsory licenses, and
the threats to grant compulsory licensing will be much less effective.

It is irresponsible, and truly astounding, that TPP negotiators would
introduce new standards for the use of compulsory licensing of patents in a
secret negotiation, without a public debate or any effort to consider the
impact of such a move, not only on the health sector, where the risks are
obvious, but on the economy as a whole, which is dealing with the
consequences of patent thickets in many different areas.


James Love.  Knowledge Ecology International
KEI DC tel: +1.202.332.2670, US Mobile: +1.202.361.3040, Geneva Mobile:
+41.76.413.6584, twitter.com/jamie_love

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