The Need of and Justification for a General Competition-Oriented Compulsory Licensing Regime

Abstract

There seems to be little or no discussion about the need of and justification for a general compulsory licensing that could be applicable to all IP laws. This author has previously argued, by referencing to competition law, in 2008 that it is paramount for the WTO to revise the TRIPS Agreement, so as to include substantive grounds for granting compulsory patent licenses. In so doing, the preservation of competition should be factored in as one of the public policy objectives. As a follow-up study this paper takes an IP-internal approach (therefore will only consult competition law in a very limited fashion) and strives to present a general compulsory licensing doctrine that can be included as an inherent and integral element of IP laws. However, any general theory runs the risk of overstating convergence and oversimplifying divergence. Bearing this possible shortcomings in mind, this paper focuses solely on one aspect of compulsory licensing, namely the protection of market competition, and leaving other public interests, such as the prevention of an epidemic, and access to information out of its ambit.