Doha implemented in European patent law

The IPKat has just spotted a bit of recent history - on 9 June the European Commission's Official Journal published the text of Regulation 816/2006 of 17 May 2006 on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with public health problems. This Regulation, which enters force on 29 June - the 20th day following its publication in the OJ, implements the World Trade Organization's Doha Declaration, which recognises that every WTO member has the right to utilise compulsory licensing provisions to protect its health, even if it lacks the manufacturing capacity to make products under the patent itself.

Regulation 816/2006 essentially provides as follows:
* Article 1: Any person may apply for a compulsory licence, in accordance with conditions laid down in Articles 6-10;

* Article 3: the national authority for granting ordinary compulsory licences is to be competent to deal with these Doha licences, unless the contrary is provided;

* Article 4: countries to benefit are as follows - least developed countries on the UN list, certain other countries notified to the WTO Council, non-WTO countries on the OECD Development Assistance Council list, having per-capita income of less than US$745 a year;

* Article 7: the patent rights owner must be notified and has a right to comment and to provide information - but not, it appears, to object;

* Article 9: applicant countries must first show that they tried to negotiate a voluntary authorisation from the patent owner;

* Article 10: compulsory licences are non-assignmable and non-exclusive, being limited to the purpose for which they are needed. The patent owner is entitled to reasonable remuneration from the licensee [this is a big and important Article];

* Article 13: importation into the EU of pharma products made under compulsory licence is basically banned.
The IPKat hopes and prays that this precious opportunity to benefit the poor, the sick and the needy will not be cynically abused by a coalition of dishonest importers, transshippers and criminals who will see this as a challenge to them to see how quickly they can get Doha drugs into the EEA and sell them in strong-currency countries. Merpel adds, there are no criminal provisions in the Regulation and a lot of patented pharma products are dirt cheap to make: if the worst that can happen to an unlawful importer in practice is that he can lose his consignment, he may as well just carry on trying to get the goods in until the Customs authorities slip up and he wins his jackpot.

Make your own pharma products here

Most recent ETMR

The jumbo-sized double issue of Sweet & Maxwell's European Trade Mark Reports for July-August 2006 has once again been happily published early. This issue includes the following cases:
* Esso plc v Greenpeace France (Cour d'appel de Paris, France) - what we think is the last of a series of cases arising from Greenpeace's parody of the Esso trade mark on its website;

* both of the 02 v Hutchison 3G cases before the High Court, England and Wales - the short one, where the judge refuses to allow evidence explaining the results of a survey that he didn't give permission for, and the big one, where Mr Justice Lewison tries to get to grips with an elusive bubble trade mark comparative advertising problem, and the law goes pop;

* Elizabeth Emanual v Continental Shelf 128 Ltd, where the European Court of Justice affirms that a person, having sold their name as a trade mark, can't objecct to any honest use of that trade mark by someone else.
As usual, if there are any cases you'd like to see reported in the ETMR, tell the IPKat here and he'll see what he can do.

1 comment:

Anonymous said...

According to the WTO website, no importing countries have notified to the WTO their intention to use the compulsory licence system, so this may all come to nothing!

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