Lê Thị Nam Giang

Giám đốc Trung tâm Sở hữu trí tuệ, Trường Đại học Luật TP. Hồ Chí Minh

Compulsory licensing of patent is the permission to use a patent from a government without depending consent of the patent owner. Being one of the restrictions of rights applied to patent owner, patent compulsory licensing is provided in international law as well as in national legislation, inclusing Vietnamese law. Patent compulsory licensing is acknowledged in many new-generation free trade agreements, which brings many opportunities and challenges for developing countries, especially in matter of public health.

This paper focuses on analysing these matters: (i) Provisions of CPTPP and EVAFTA on patent compulsory licensing in order to protect public health; (ii) Positive and negative impacts of patent compulsory licensing; (iii) Opportunities and challenges for Vietnam and other developing countries in implementing patent compulsory licensing for purpose of protecting public health; (iv) Provisions of Vietnamese law on patent compulsory licensing in order to protect public health. Compulsory licensing of patent for other reasons, such as patent compulsory licensing for reason of restricting exclusive abuse of patent owner or for reason of using dependent patent… are out of researching scope of this paper. This paper is also limited on analysing provisions of patent compulsory licensing in two new-generation free trade agreements that are CPTPP and EVAFTA as well as provisions in international law which are referred to by those two FTAs and Vietnamese law.

Keywords: Compulsory licensing of patent; patent compulsory licensing; protecting public health; CPTPP; EVFTA; TRIPs Agreement; Doha Declaration on TRIPs and Public Health; Decision of the WTO General Council on 30/8/2003.