[Ip-health] Compulsory licensing of patents, outside of the Thai case

Thu Feb 1 22:02:02 2007

The US is the ONLY country that does not embrace compulsory licensing. It i=
s an essential element of the patent regimes of virtually every other natio=
n. Until the US used TRIPs to lean on the rest of the world, there was neve=
r any question that a state that grants a patent monopoly has every right t=
o limit it in any way it deems desirable.

Mickey Davis
_________________________________

Prof. Michael H. Davis
Professor of Law
Cleveland State Univ. College of Law
1801 Euclid Ave.
Cleveland, OH 44115-2214 (mailing address: 2121 Euclid Ave. LB 234)
216-687-2228
_________________________________
Patent Attorney Admitted to Practice Before the US Patent and Trademark Off=
ice Reg.No. 45,863

-----Original Message-----
From: James Packard Love <james.love@keionline.org>
Date: Thursday, Feb 1, 2007 7:28 pm
Subject: [Ip-health] Compulsory licensing of patents, outside of the Thai c=
ase
To: Ip-health <ip-health@lists.essential.org>

Rob Weissman suggested I post this note frequently, given the
>maddening and apparently never ending efforts by many to repeat the
>untrue assertion that there is some global consensus or rule that say
>that compulsory licensing is (a) only related to the treatment of a
>few diseases, (b) for public health emergencies only, or (c) that
>only a handful of countries do it.  I spoke to one US government
>official yesterday, in Bangkok, who told me, "what the US does is
>'different'."   Which of course is true.  What everyone is different
>in some respects.  What is the same is that many many countries allow
>patents to be used without permission from patent owners, for
>royalties set by governments or courts.  These royalties vary
>considerably.  F or example, in the recent (2006) US cases, the
>Johnson and Johnson compulsory licensing on the Voda patents was for
>7.5 percent, while the Toyota compulsory license on the automatic
>transmission patents was about .1 percent ($25 royalty for a $25,000
>car).
>
>Jamie
>
>-----------
>Some recent examples of the use of compulsory licenses
>James Love
>Knowledge Ecology International
>24 December 2006
>
>North America
>
>United States
>
>     Mandatory compulsory license patents whose term was extended by
>GATT implementation
>
>For patents that were extended by the change from 17 years from the
>patent grant to 20 years from the patent application (the =93delta=94
>period), the Congress created a mandatory compulsory license. The
>compulsory license applied to over 100 brand name pharmaceutical
>products. However, drug registration issues that were not addressed
>in the GATT implementation legislation undermined the benefits of the
>compulsory license in the pharmaceutical sector.1
>
>     Cases involving government use under 28 USC 1498
>
>In 2001, DHHS Secretary Tommy Thompson used the threat to use 28 USC
>1498 to authorize imports of generic ciprofloxacin, for stockpiles
>against a possible anthrax attack.
>
>In 2005, the US Department of Justice cited its right to use patents
>in 28 USC 1498 when it opposed injunctive relief for infringement of
>the patents relating to the Blackberry email services supplied to
>both the government and private firms that used the Blackberry device
>to communicate with the government.2
>
>In a November 2005 Congressional hearing, DHHS Secretary Michael
>Levitt testified before the House of Representatives that he had
>threatened to override the patents on treatments for Avian Flu if
>companies had not expanded US production facilities.3
>
>     Cases involving Bayh-Dole Act
>
>In 2001, the Department of Health and Human Services used its
>authority to exercise March-In rights for patents on stem cell lines
>held by the Wisconsin Alumni Foundation as leverage to secure an open
>license on those patents.4
>
>In 2004, DHHS refused to grant march-in rights in two cases brought
>by Essential Inventions, involving patents on the AIDS drug ritoanvir
>and the glaucoma drug latanoprost.
>
>In 2006, the Centers for Disease Control threatened to use US Bayh-
>Dole =93march-in=94 rights to issue compulsory licenses on patents on
>reverse genetics, which are needed to manufacture vaccines for avian
>flu.
>
>     Cases involving merger reviews
>
>In 2002, the US FTC ordered a compulsory cross-license of the Immunex
>tumor necrosis factor (=93TNF=94) patent, to Serono, including the
>=93freedom to practice in the research, development, manufacture, use,
>import, export, distribution and sale of TNFbp-I Products and certain
>glycosylated and nonglycosylated fragments, derivatives and analogs
>thereof in the United States.=94
>
>In 2005, the FTC ordered a compulsory license of Guidant=92s
>intellectual property surrounding the RX delivery system for Drug-
>Eluting Stents.
>
>     Cases involving non-merger remedies to anticompetitive practices
>
>In 2002, the US Department of Justice required Microsoft to license
>on reasonable and non-discriminatory terms intellectual property
>rights in a number of different protocols needed to create products
>that were interoperable with Microsoft Windows.5
>
>     Cases involving the new US Supreme Court standard for granting
>injunctions on patents. [eBay Inc. v. MercExchange, L.L.C., 126 S.
>Ct. 1837, 1839-1841 (U.S. 2006)].
>
>In June 2006, a court granted Microsoft a compulsory license to use
>two patents owned by z4 Technologies that relate to digital rights
>management systems used by Microsoft for its Windows and MS Office
>software programs.
>
>In July 2006, a court granted DirectTV a compulsory license to use
>the Finisar patent on integrated receiver decoders (satellite set top
>boxes), for a royalty of $1.60 per device.
>
>In August 2006, a court granted Toyota a compulsory license on three
>Paice patents for hybrid transmissions, for a royalty of $25 per
>automobile.
>
>In September 2006, a court granted Johnson and Johnson a compulsory
>license to use three of Jan Voda=92s patents on guiding-cat