Research on Compulsory Licensing Mechanism for Addressing the Public Health Problem under TRIPS

HIV/AIDS, tuberculosis and malaria have been harassing the developing countries for a long time, the bio-terrorist attack such as the anthrax virus after the 9·11 attack in 2001 has also provoked public panic, and the outbreak of SARS in 2002 and the recent birdflu once again draw great focus on the public health problem. TRIPs Agreement has achieved great success, from the Doha Declaration in Nov. 2001 to the General Council Decision of 6 Dec, 2005, making more flexibilities available for dealing with public health problem. China has also answered to the problem by the enacting of“Measures for Implementation of Compulsory Licenses of Patents Concerning Public Health Problem”on Nov 29, 2005.This Note discusses the balance of public health and intellectual property right, details the development of TRIPS Agreement and the legislations of national laws in this respect concerning public health and compulsory licensing. PartⅠoutlines the double-edged intellectual property right protection and the seriousness of public health problem. PartⅡanalyzes the development of TRIPs Agreement in dealing with the public health problem to make more flexibilities for and greater accessibility to essential medicines. PartⅢsummarizes the practice of compulsory licensing to deal with public health problem and the national legislations in this aspect in accordance with the TRIPs Agreement. PartⅣintroduces the response of China’s legislation to public health and compulsory licensing.