Abstract: The article discusses the specifications of ongoing tension between patent law & antitrust, as far as it is concerned with the imposition or grant of compulsory license as a penalty or remedy, while simultaneously throwing light on the scope & means to harmonize the same. While the room for an interface between the two subjects could be big, the author has deemed it appropriate to discuss the same only in light of the application of compulsory license.
The author explains what the term compulsory license in theory means, and how it looks in practical application. Throughout the article, it will be visible that the implementation or litigation around the concept is not as simple as it sounds in theory, rather it comes out in different faces, which are contradictory among themselves, and being as such, it makes the analysis complex. Different cases with varying facts give rise to contradicting results & therefore the author in the article has not provided a precise one-sided conclusion.
The author begins the analysis by discussing the jurisprudence of interface, and moves on to appreciate various rights which impliedly vest with the patentee on account of the exclusive patent holding. The author further, through the discussion on various patent power-violations that we usually come across, warns of the cautious enjoyment of the exclusive right to the patent, within the ambit of patent law strictly, as not to violate the well-known antitrust principles.
The analysis in the article on the practical implementation of compulsory license is largely derived from the jurisprudence of the US, as in other jurisdictions including India, the concept has largely survived in theory only.
Author: Lubhanshi Rai is an Associate at Indo Legal Services LLP, and a graduate of Amity Law School, Delhi. The Author may be reached at firstname.lastname@example.org.
The full text of the article can be found as a PDF here.