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Ironing out the wrinkles: reforms to Crown use and compulsory licensing to help prepare the Patents Act 1977 for the next health crises

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Liddicoat, Johnathon 
Parish, James 


This paper recommends four reforms to the Patents Act 1977 due to concerns raised by health crises. The exclusive rights granted by patents create the possibilities that patentees may charge unreasonable prices or limit the supply of their inventions, thereby harming public health. These possibilities seldom arise, but patent law ought to provide effective responses if they do. Compulsory licences and Crown use are designed for these purposes; however, this paper finds shortcomings in both mechanisms. The grounds for compulsory licences are too narrow, and two procedural aspects make it too slow. This paper proposes reforming all three defects. By contrast, Crown use can be invoked swiftly and on a broad variety of inventions. Yet, an amendment introduced in 1988, which compensates patentees for lost profit, can make Crown use unaffordable, hampering the mechanism’s usefulness. This paper proposes reform to suspend the compensation during emergencies, thereby ensuring the affordability of Crown use during future health crises.



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Intellectual Property Quarterly

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Sweet and Maxwell

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This work was supported, in part, by a Novo Nordisk Foundation grant for a scientifically independent Collaborative Research Programme in Biomedical Innovation Law (Grant Agreement Number NNF17SA0027784).