Compulsory licensing of patents

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The availability of compulsory licences in respect of patents, especially in relation to pharmaceutical patents, has been the subject of considerable attention lately. This is mainly as a result of the Indian courts showing their willingness to grant compulsory licences in respect of pharmaceutical patents. In particular, the Indian courts recently granted a compulsory licence to an Indian generic pharmaceutical company under Bayer’s patent for its cancer drug Nexavar, determining that in essence Bayer’s price for Nexavar was too high.

Together with Bayer’s failed challenge that India’s patent legislation under which the compulsory licence was granted was not compliant with the TRIPS agreement (the TRIPS agreement puts restrictions on the ability of WTO members (of which India is one) to restrict the exclusive rights of patentees through — among other things — compulsory licences), this has led to significant media interest in the power under national patent legislation to grant compulsory patent licences…

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