| dc.description.abstract | invention. The protection given by the state is the exclusive right. However,
the exlusive right leads the patent holder to the monopoly right which means that
not all people can utilize the invention because it needs the patent holder consent.
For that reason, Indonesia and India which are the states member of the WTO and
also the developing countries used the flexibility of the patent. The flexibility of
patent is the kind of option to except and limit the right granted by the patent
protection (exclusive right). In the practice, Indonesia and India are commonly used
flexibility of patent through the compulsory license to avoid monopoly right.
Compulsory license is the kind of license to use the invention without patent holder
consent which is granted with a certain procedure. However, there is an exception
to give the compulsory license directly such as for the pharmaceutical product
because it is related to the public interest. Furthermore, the TRIPs Agreement has
already permitted the provision.
The problems of this research are focused on (1) the similarities and
differences between Indonesia and India’s regulation regarding the compulsory
license of pharmaceutical product especially in the matter HIV/AIDS medicines;
and (2) legal implication of regulation regarding compulsory license in Indonesia
and India especially in the matter HIV/AIDS medicine.
The results of the study show that there are similarities between Indonesia
and India as the WTO members. In this matter, they must adopt the same legal basis
to implement the compulsory license based on TRIPs Agreement. In addition, they
require the requirement to ask to compulsory license are based on the request during
the 3 years after granting patent protection. Another similarities are related to the
purpose of the compulsory license based on the public interest. In addition, both
countries adopted same legal certainty for the pharmaceutical product granted
directly without any requirement procedure. However, there are still differences
among the members especially Indonesia and India. The differences regarding
compulsory license for pharmaceutical product on patent are related to the subject
grants the compulsory license. In Indonesia, Ministry through Minister Decision is
one of the subjects who has an ability to grant the compulsory license. In another
side, India has regulated the subject who is able to grant the compulsory license
which is the Controller. In the practice, the compulsory license for pharmaceutical
product in Indonesia has not yet been implemented. However, India has already
implemented the compulsory license for generic production.
Furthermore, the regulation on compulsory license for pharmaceutical
product in patent protection gives the legal implication for Indonesia and India. The
first legal implication is in the form of legal certainty for compulsory license in
Indonesia and India. The second legal implication is related to the protection for the
parties involved in compulsory license. The last implication is regarding the form
of utilization of compulsory license in Indonesia and India. | en_US |
