Review of Granted Compulsory Licenses

Abstract

In our opinion, “a normal exploitation” and “the legitimate interests” of the patent should be subject to the substitution effects of the products made under compulsory licence, and the legitimate interests of third parties should be measured by whether such interests benefit the ultimate goal of patent law. When the infringing acts have no substitution effects, “a normal exploitation” and “the legitimate interests” of the patent are not negatively impacted, and such acts may justifiably be named as exceptions and limitations. The granting of a compulsory licence functions through the waiver of specific exclusive rights, to an extent. Therefore, the granting of a compulsory licence is among the exceptions and limitations under patent law. Based on our arguments about the exceptions and limitations, the granting of a compulsory licence should be tested by the criteria of Art. 30 TRIPS Agreement to secure its justification.