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[Salinan]Disalin!
hen the revised version of the Measures for Compulsory Licensing Implementation, issued by the State Intellectual Property Office (SIPO) came into effect in May 2012, many media sources declared that compulsory licences would now be used in China and that the country had ‘broken the patent barrier on drugs’. Indeed, many commentators linked events in India with the changes to the Chinese legislation and speculation was rife that China was following in India’s footsteps. Such headlines were not, however, truly accurate. The revised legislation simply strengthened the compulsory licensing framework and implemented detailed procedures regarding application and defence against applications and expanded the scope for compulsory licensing to include ‘any matters of public health’. Even prior to the new measures, a compulsory licence could have been granted under Chinese patent law if a company or entity was unable to obtain a licence within a reasonable timeframe on reasonable terms and conditions.Whilst both markets hold huge potential for western pharmaceutical companies, it is clear that China and India are at very different stage of economic development. The Chinese authorities have made much of their desire and intent to protect their international reputation concerning intellectual property and to create and foster an environment conducive to research and innovation. There have been many proclamations concerning the importance of upholding intellectual property rights and the future growth of the economy, and several important revisions to Chinese intellectual property legislation have taken place. China has never granted a compulsory licence, not even during the SARS outbreak. Indeed, in a well publicised example from 2003, a Chinese company applied for a compulsory licence to produce a version of Roche’s Tamiflu, but the application was refused. Several commentators have observed that they do not envisage China issuing any compulsory licences in the next five years, save in the situation of a national pandemic or emergency.
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