Compulsory Licensing for Patent Exploitation between Exclusion and Restriction Accordance to the Emirati Law
DOI:
https://doi.org/10.35246/jols.v38i1.602Keywords:
Compulsory Licensing, Patent, UAE Law, Intellectual Property Rights, Cancel The Compulsory LicenseAbstract
The patent means that the inventor is granted a right of intellectual property that is solely acquired by the patent's owner. This study highlights the compulsory licensing provisions that entitle government agencies to exploit the inventor's patent and to exploit it in the manufacture of goods and industries by a third party without the consent of the patent owner for reasons required by the interest of society.
This means has been referred to by Decree-Law No. 11 of 2021 on the regulation and protection of industrial property rights. However, the UAE legislator has made recourse to this means an exception, restricting this means by justification required by the public interest of society.
The study will focus on the description and justification of compulsory licensing. Then describe the provisions governing compulsory licensing and the philosophy of the UAE legislator by analyzing the legal texts and indicate the effectiveness of the legislator in balancing the interest of society with the interests of inventors.
Perhaps one of the most important recommendations reached by the researcher is to call on the UAE legislator to determine how long the licensee can be judged positive for such exploitation and to achieve maximum benefits, especially in the context of satisfying the consumer's needs.
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References
First: Arabic References
A-Book
i. Al-Soghair, Hossam El-Din Abdel-Ghani, 2001, Foundations and Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement): An Analytical Study Covering the Conditions of Developing Countries with Interest in Patents, (Cairo, Dar Al-Nahda Al-Arabi).
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viii. Maghabghab, Naeem, (2009) The patent is an industrial and commercial property, a study in comparative law, (Lebanon, Al-Halabi Publications).
B: Journals
i. Al-Dala’a, Samer Mahmoud, and Melhem, Bassem Muhammad, 2010, “The problem of addressing the arbitrariness of the holder of the right to innocence in Jordanian law,” Studies Journal - Sharia and Law Sciences - University of Jordan, Volume 37, Issue (2).
ii. Zawawi, Sufyan, December 2017 “Compulsory License to Exploit the Patent,” Sharia and Economics Journal / Twelfth Issue / Rabi` al-Thani.
iii. Garrash, Sharifa and Adel Akroum, 2020, “Compulsory licensing to exploit a patent for an invention in international agreements and its impact on Algerian legislation,” The Researcher Journal for Legal and Political Studies - Volume 05 - Issue (1).
iv. Darwazi, Ammar and others, (June 2020), “The problem of achieving a balance between the interest of the inventor and the public interest regarding the controls for exploiting the patent,” Journal of Legal Studies, Dr. Moulay El Taher University, Saida, Algeria, Volume 7, Issue (2).
v. Al-Ghamdi, Abd al-Hadi Muhammad, (December 2016) “Compulsory license to exploit the invention according to the Saudi patent system and comparative law (Egyptian and British) (and in light of the TRIPS agreement), University of Sharjah Journal of Sharia and Legal Sciences, Volume 13, Issue (2).
vi. Arisha, Farouk, (December 2015) “The legal mechanisms available to control the pharmaceutical industries in Algeria according to patent laws, Journal of Human Rights and Sciences,” Zayan Ashour University, Volume One, 31, Issue (25).
vii. Al-Arman, Muhammad, (2018), “Compulsory drug licensing in the United Arab Emirates and the possibility of resorting to it. A study in the light of the provisions of the TRIPS Agreement, the Federal Industrial Property Protection Regulation Law, and the Doha Declaration.” Journal of Law and Human Sciences, Zayan Ashour University, Vol. 11, No. (1).
viii. Ammar, Mona Al-Sayed Adel Abdel-Shafi, (2021), “The Powers of the TRIPS Agreement Are Failing in the Face of the Global Health Emergency With Application to the Coronavirus,” her research published in the journal: Al-Zaytoonah University of Jordan for Legal Studies, Volume (2), Issue (2).
ix. Marmon, Musa, (June 2020), “Compulsory License to Exploit the Patent in Algerian Law,” Journal of Human Sciences, Volume 31, Issue (2).
C- Theses and Studies
i. Al-Bishtawi, Ahmad Tariq, (2011), “The Licensing Contract for the Exploitation of the Patent,” his master’s thesis, College of Graduate Studies, An-Najah National University, Nablus, Nablus, Palestine.
ii. El-Soghair, Hossam El-Din, (January 2007), “International Protection of Industrial Property Rights: From the Paris Agreement to the TRIPS Agreement”, WIPO National Training Seminar on Intellectual Property for Egyptian Diplomats, World Intellectual Property Organization (WIPO and the Institute for Diplomatic Studies), Cairo.
iii. Abu Aita, Abdullah Ibrahim Mahmoud, (2016), “Compulsory License for a Patent,” Master Thesis, Faculty of Law, Jerash University.
iv. Al-Absi, Issam Malik Ahmed, 2007, “Requirements of the Public Interest Concerning Patents in the Legislation of Arab Countries,” PhD thesis in private law, Faculty of Law, University of Badji Mokhtar, Annaba.
v. Al-Zoubi, Mona Faleh Diab, (2010), “Compulsory Licenses for Patents and Their Role in Exploiting Technology,” Master Thesis, Middle East University, Amman - Jordan.
vi. Jedi, Najat, (2019), “Legal Protection of Intellectual Property in Accordance with the Requirements of Sustainable Development,” his doctoral dissertation, Faculty of Law, University of Algiers -1- Ben Youssef Ben Khadda, Algeria, p. 369.
D: Laws and Agreements
i. TRIPS is an acronym for the Agreement on Trade-Related Aspects of Intellectual Property Rights known as TRIPS, which is derived from the GATT Agreement.
ii. Paris Convention for the Protection of Industrial Property of 1883.
iii. Federal Law No. (11) of 2021 regarding the organization and protection of industrial property rights
iv. Federal Law No. (5) of 1985 promulgating the Civil Transactions Law of the United Arab Emirates amended by Federal Law No. (1) of 1987 AD.
v. The Egyptian Intellectual Property Rights Protection Law of 2002.
Second: Foreign References
i. Samuel Mark Borowski, (2009) saving Tomorrow from Today: Preserving Innovation in the Face of Compulsory Licensing, 36 FLA. ST. U. L. REV. 275.
ii. Bradly Condon and Tapen Sinha, )2005 (Global Diseases, Global Patents and Differential Treatment in WTO Law: Criteria for Suspending Patent Obligations in Developing, Northwestern Journal of International law and business, Volume 26 Issue 1 Fall.
iii. Carlos M Correa, (1999), INTELLECTUAL PROPERTY RIGHTS AND THE USE OF COMPULSORY LICENSES: OPTIONS FOR DEVELOPING COUNTRIES working paper, SOUTH CENTRE, OCTOBER, with the research assistance of colleagues at the Centre for Advanced Studies at the University of Buenos Aires, Argentina.
iv. Carlos M Correa. (2020), Guide for the Granting of Compulsory Licenses and Government Use of Pharmaceutical Patents, South Centre April.
v. Sapna Kumar, (2022), Compulsory Licensing of Patents During Pandemics, Connecticut Review, University of Connecticut.
vi. Michael R. Nielsen Samardzija, (2007), Carol M. Compulsory Patent Licensing: Is It a Viable Solution in the United States. Michigan Telecommunications and Technology Law Review. Volume 13, Issue2.
Third: Websites and Electronic links
i. https://www.wipo.int/treaties/ar
ii. https://www.future-science.com/doi/10.4155/ppa.12.68
v. https://www.taylorwessing.com/synapse/ti_compulsorylicensingpatents.html
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