论我国现行药品专利强制许可立法的不足与完善

Inadequacy of China's Legislation on Compulsory Licensing ofPharmaceutics Patent and Its Improvement

面对艾滋病、SARS、禽流感等大规模传染性疾病对公共健康安全的威胁,世界贸易组织以及各国纷纷加强药品专利强制许可立法,当然,我国也不例外。但是,我国现行药品专利强制许可制度,仍然存在立法层次过多、颁发事由不明确、申请主体过窄等不足,在今后进一步完善相关立法时,应考虑在专利法中对药品专利强制许可做出专门的、完整的规定,并明确将公共健康利益需要作为颁发专利强制许可的事由,以及允许任何单位和个人成为药品专利强制许可的申请主体。

Faced with the threat of Aids, SARS, Bird Flu and other large - scale infectious diseases to public health and safety, WTO and many countries, of course including China, have strengthened their legislation on compulsory licensing of pharmaceutics patent. However, in China, there are still some limitations of the current compulsory licensing system of pharmaceutics patent, such as excessive levels of legislation, unclear cause of issuing the law, and limited varieties of applicants, etc. For further improvement of the relevant legislation in the future, it is suggested that, first of all, specialized and complete regulations should be made with regard to compulsory licensing of pharmaceutics patent. Secondly, the beneficial needs of public health should be claimed clear as the cause of issuing patent compulsory licensing. And additionally, any unit and individual should be allowed to be applicant for compulsory licensing of pharmaceutics patent.