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AnalysisChina has established a mechanism for thegrant of compulsory patent licensing and therehave been detailed provisions also.China has referred to the provisions ofinternational treaties to which the People’sRepublic of China has acceded whenrelevant provisions were drafted. The 2010Implementing Regulations expressly require thatthe SIPO decisions under Article 50 of the 2009Patent Law must “be in conformity with theprovision of the international treaties China hasconcluded or acceded to regarding granting acompulsory licence for resolving a public healthproblem, except for those China has made itsreservations.” However, the Chinese regulationsdo have certain deviations from the internationalstandards. For example, the Chinese regulationsdo not provide that the patentee is entitled to“adequate compensation”, as Article 31(h) ofTRIPS requires, although Article 74 of the 2009Patent Law does provide that the patenteemay seek “reasonable compensation” when acompulsory licence is imposed.The 2009 Patent Law and the 2010Implementing Regulations have broughtcertain amendments to the mechanism forcompulsory patent licensing. On 12 October2011, the SIPO published a draft of newmeasure on patent compulsory licensing forpublic comments. According to the SIPO,the new measure will supersede the 2003Measures and the 2006 Measures.Although compulsory licensing has beenavailable under People’s Republic of ChinaPatent Law since 1985 and the mechanism forthe grant of compulsory licences has been welldeveloped in China, China has not granted anycompulsory licence to date and the Chinesegovernment has been very cautious aboutgiving any official comments whether it is thetime to grant the first compulsory licence.Recently, Gilead Sciences announced it hadgranted medicine patent pool licences for fourAIDS medicines to be supplied in more than 100countries, but the scheme does not include China
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