Compulsory Patent Licensing for Efficient Use of Inventions
Joseph A. Yosick | 2001 U. Ill. L. Rev.
This note compares compulsory patent licensing provisions in the United States and modern, foreign nations. Many foreign nations have provisions that allow for compulsory licensing of patents. Compulsory licensing provisions give states the power to force a patent holder to license his patent to another, despite the patent holder's property interest in the patent. The author argues that the interest of the public, in some cases, may outweigh a patent holder's property interest.
The note begins by providing an overview of U.S. patent law and its limited use of compulsory licensing in certain cases, such as a remedy for antitrust violations. Recent U.S. cases have rekindled the need to look at expanding the use of compulsory licensing. Next, the author sets forth other nations' compulsory licensing provisions in three particular areas: dependent patents, non-worked patents, and medical and food patents. After an analysis of the limited use of compulsory licensing in the U.S., the author examines the possible expansion of the current U.S. law by analyzing current U.S. statutes and case law. The analysis also discusses proposals for the expansion of compulsory licensing and the criticism these proposals have encountered.
The author suggests implementing compulsory licensing into U.S. patent law by enacting legislation similar to the patent laws of other nations. If the patent holder and the individual applying to use the patent fail to reach a compromise, the author proposes that the applicant would proceed through the licensing process through a federal district court. The patent holder is able to appeal if a license is granted to the applicant, thus the holder does not completely lose property interests and rights to his creation. Expanding the use of compulsory licensing in the United States would promote the use of dormant patents, provide procedures for remedying disputes, and promote further development of technology.