A Study on Patent Compulsory License System in China – With Particular Reference to the Drafted 3rd Amendment to the Patent Law of the P.R. of China

The patent compulsory licensing system has always been a very controversial topic in intellectual property law, in particular for developing countries around the world. The TRIPS Agreement signed in 1994 did not stop these disputes; instead, due to the complication of the relationship between the TRIPS Agreement and the Paris Convention, patent compulsory licensing has become even more complica-ted. Although China has not issued any compulsory licenses, as this system involved numerous interests in the ongoing 3rd revision on the Patent Law, the patent compulsory licensing has become a focus to all.

Being involved in the legislative revision process of the Patent Law of the P.R. of China, I would like to explore the key issues on the patent compulsory licensing system from the perspective of China's law.

This paper will proceed as follows: firstly, it will discuss the meaning of ‘Failure to Work or Insufficient Working’ under the framework of TRIPS; secondly, it will explore whether the granting of a compulsory license is based on the refusal of the patent holder; thirdly, the paper will examine the relationship between compulsory license and anti-competition; and fourthly, it will cover the compulsory license for public health.