Page 132 - KDU Law Journal Volume 4 Issue 2

KDU Law Journal Volume 04 Issue II
September, 2024
discretion to choose the conditions under which licenses are granted,
the authority to define national emergencies and situations of extreme
urgency, and the authority to establish the regime of intellectual property
rights exhaustion are just a few of the TRIPS-related rights that are
mentioned in the Doha Declaration. The case of Nacto Pharma Ltd
V Bayer Corporation and the Compulsory Licensing Regime in India
order issued compulsory license for the cancer drugs.
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If other patent owners adopt a protectionist patent position, such as
Gilead, “health or safety needs” could, nevertheless, offer a solid
foundation for the exercise of march-in rights and the granting of a
forced license during a pandemic. However, there may be no need for
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government action in the form of mandatory patent licenses if more
businesses adopt more socially conscious strategy, as AbbVie has done.
The availability of this measure, however, might at least provide some
solace and encourage businesses to willingly suspend their patent
rights during this worldwide public health emergency in order to avoid
a government march-in. Alternatively, it might be done as a selfless
act of kindness demonstrating that social responsibility has a place in
business. 35

According to the doctrine of exhaustion, once a patent owner sells a
medicine or vaccine product, he cannot sue the purchaser for having
an authorized copy of the patented product. Therefore, it assists to
improve access to medicines in the health industry. Competition
policies contribute to a fair market behavior by controlling patent
monopoly and it has the ability to control availability and market
price range.

33 no ․45/2013
34 Theodorus Willem Peter van Dijk, The Limits of Patent Protection (Universitaire Pers
Maastricht.1994)83
35 Nambiar, Kunte and Bhat (2023), «Protection of intellectual property and human rights
during health emergencies: an assessment of the patent waiver proposal», International
Journal of Human Rights in Healthcare, Vol. ahead-of-print No. ahead-of-print. https://doi.
org/10.1108/IJHRH-06-2022-0064 accessed on 17th December 2023
law.faculty@kdu.ac.lk
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