[Ip-health] EPO report: Compulsory licensing in Europe A country-by-country overview

James Love james.love at keionline.org
Tue Feb 26 09:21:28 PST 2019


>From the Introduction:
"Compulsory licensing of patents is not frequently used throughout Europe,
but in certain situations it allows government or government-appointed
authorities to override patent holders’ exclusive right to exclude all
others from using their inventions. From the patent holder’s perspective, a
compulsory licence may seem radical whilst from that of the public
interest, it may be a necessity, for example where life-saving inventions
are concerned. Compulsory licences are granted on limited grounds with
significant judicial or administrative scrutiny."

. . .

"This book has been developed by the European Patent Academy together with
the European Patent Lawyers Association (EPLAW) and other patent
practitioners to provide a comprehensive overview of the different
compulsory licensing regimes in all 38 EPC contracting states."

The country discussions are informative, but not complete.  For example, in
Germany, just two cases are discussed, including the recent case involving
the HIV drug raltegravir, where a compulsory license was granted.  But many
compulsory licensing cases have been filed, and they are often settled with
a voluntary license, with a case closed to the public, before a judicial
decision.  This was the case, for example, in the Icahn School of Medicine
at Mount Sinai/Sanofi/Shire/ Faby disease patent case, as well as in the
Chiron/Roche case involving patents on testing for HCV and HIV nucleic acid
clinical diagnostic tests.

The UK discussion does not mention the threat of a Crown use license for
HCV diagnostic tests.

The Italy discussion says there were no compulsory licenses, although the
Italian competition authority, Autorità garante della concorrenza e del
mercato (the AGCM),claimed to have issued four compulsory licenses, on
drugs for cancer, pain and antibiotic drugs.

The France and Belgium cases do not mention the disputes over the BRAC1
patents, where laws were enacted to expand the authority to issue
compulsory licenses on diagnostic tests, as part of a negotiation over the
costs of and patent claims on the tests.

The EC Microsoft compulsory license is not mentioned, and several other

But still, the EPO report is interesting, and worth reading, for example,
for the discussion of the grounds and procedures in various national laws.


Here also is an earlier comment KEI wrote about the EU experience with
compulsory licensing.

James Love.  Knowledge Ecology International
http://www.keionline.org <http://www.keionline.org/donate.html>

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