中印药品专利强制许可制度的比较研究

发布时间：2018-11-03 17:37

【摘要】：在经历了两次世界大战之后,中印两国均在20世纪中叶取得了各自的独立,建国初期,印度政府基本上沿用了英国殖民统治时期的专利法,中国则完全照搬了前苏联的专利制度。直到20世纪70年代,两国才重新根据本国的国情建立起了符合各自国家发展利益的专利制度。由于中印两国同为人口大国,并且两国当时的公共卫生基础设施及其薄弱,为满足公共卫生的需要,两国都在制定专利法的时候将涉及医药制品排除在了可授予专利保护的范围之外,这一点也是符合当时两国国情的。制药产业不仅对经济的发展和科技的进步具有重要的推动作用,其对公共健康卫生的影响作用是其他产业所无法企及的。中印两国的制药工业在制造能力上都己进入世界大国行列,尤其是大宗抗生素的生产,两国基本能左右国际市场行情。但是与西方发达国家先进制药行业相比较,中印两国的差异也是极为明显的,其中一个最为突出方面就是缺乏充足的拥有完全自主知识产权的药品。这无疑使得两国在应对国内可能出现严重的公共卫生危机时捉襟见肘。在进入21世纪之后,特别是两国先后成为了世界贸易组织成员国之后,印度在对待本国专利法与国际接轨的问题上,采取的手段明显要更加灵活一些。这一点从印度在加入世界贸易组织之后对于本国专利法的修改便可察觉,印度并未一味的强调高标准的专利保护,而是缓慢的对其专利法进行不断的修正,以符合其国内社会经济的发展需求,正是这种务实的态度,使得印度制药行业为代表的国内经济充分得到了法律政策层面上的庇护,并且在经过了一定时期的积累后从容的升级,终究在世界经济全球化的今天发展成为可以与西方同行抗衡的重要力量,为印度在应对今后可能出现的公共卫生危机时,提供了一定的产业支持。本文通过对印度在其专利制度发展上的策略和手段的研究,试图对我国今后的药品专利制度的发展提供一些借鉴,特别是在当下追求将知识产权保护标准提高到西方发达国家水平成为主流的时代,我国如何做到在既不与国际相关条约和协议冲突的条件下,又能充分利用专利制度作为调整国家产业政策升级的法律工具来进行综合考量。
[Abstract]:After two world wars, both China and India gained their independence in the middle of the 20th century. In the early days of the founding of India, the Indian government basically followed the patent laws of the British colonial rule. China, for its part, copied the patent system of the former Soviet Union. It was not until the 1970s that the two countries re-established the patent system according to their national conditions. Because China and India are both populous countries, and their public health infrastructure was weak at the time, to meet the needs of public health, Both countries are making patent laws to exclude pharmaceutical products from the scope of patent protection, which is also in line with the situation of the two countries at that time. Pharmaceutical industry not only plays an important role in promoting the development of economy and the progress of science and technology, but also affects public health and health. The pharmaceutical industry of both China and India has entered the ranks of the world's largest countries in terms of manufacturing capability, especially in the production of major antibiotics, and both countries can basically control the international market. But compared with the advanced pharmaceutical industry in the western developed countries, the difference between China and India is also very obvious, one of the most prominent aspects is the lack of adequate medicines with full independent intellectual property rights. This undoubtedly puts the two countries in a tight position to cope with a potentially serious public health crisis at home. After entering the 21st century, especially after the two countries have become members of the World Trade Organization, India has to take more flexible measures in dealing with its patent law in line with the international law. This can be seen from India's amendment to its patent law after its accession to the World Trade Organization. Instead of emphasizing high standards of patent protection, India has been slowly revising its patent law. In keeping with its domestic socio-economic development needs, it is this pragmatic attitude that has given the domestic economy, represented by the Indian pharmaceutical industry, full protection at the legal and policy levels, And after a certain period of accumulation, after a relaxed upgrade, after all, in the face of the globalization of the world economy, it has developed into an important force that can compete with its Western counterparts, so that India can cope with a possible public health crisis in the future. Provide certain industry support. This paper attempts to provide some references for the future development of drug patent system in China through the study of India's strategy and means in the development of its patent system. Especially in the current era when the standard of intellectual property protection has become the mainstream of the western developed countries, how to do it without conflict with the relevant international treaties and agreements, It can also make full use of patent system as a legal tool to adjust the upgrading of national industrial policy for comprehensive consideration.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.42

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