First of all, the questions raised
In 2005, the media reports on bird flu touched people's hearts: at present, bird flu has occurred in many countries and regions in the world, including Vietnam, Thailand, South Korea and other countries, and people in Vietnam and Turkey have died of bird flu. Up to now, there have been many highly pathogenic avian influenza outbreaks in Inner Mongolia, Liaoning, Hunan and other provinces 1 1, and three people have died [i]. With the rapid spread of bird flu in Asia, the World Health Organization has issued a warning that bird flu is definitely not just a disaster for poultry. If bird flu mutates, it will be a disaster for all mankind and may lead to several deaths.
With the spread of bird flu. In the face of the large-scale infectious disease crisis that bird flu may cause, people naturally focus on the prevention and treatment of bird flu. However, according to relevant data, this information is not optimistic. According to relevant media reports, Tamiflu, a routine anti-influenza drug produced by Roche, Switzerland, has shown an inhibitory effect on H5N 1 influenza virus in animal experiments. In order to cope with the outbreak of avian influenza in people, some countries have strengthened the storage of Tamiflu. Since Roche obtained the patent right of the drug to 20 16, people focused on the patent: some people pointed out that "if the avian flu epidemic broke out on a large scale, the relevant drug patent laws and regulations should be sidelined", while others called on Roche to give up the patent right, disclose the formula of Tamiflu and allow more manufacturers to produce and manufacture the drug [iii]. ...
In the face of the possible outbreak of avian influenza in the world, the demand of countries for Tamiflu and the shortage of manufacturers, an unavoidable reality is in front of people: there is an obvious contradiction between the public demand for patented products and the patentee's exclusive right to patented products, and the patentee's monopoly interests conflict with the public interests. Judging from the current situation, bird flu only appears in some parts of the world. If bird flu breaks out in the world in the future and even spreads to human beings, how should the international and domestic communities respond? From the legal point of view, what kind of institutional arrangements should the law make in the face of the conflict between the monopoly interests of the patentee and the public interests? Is it to "let the relevant drug patent laws and regulations stand aside"? Or make reasonable arrangements for the use, distribution and benefit sharing of patented products in advance within the framework of law? Related problems are the focus of this paper, and also the realistic problems that need to be solved by the international and domestic society at present.
Second, from the basic theory level: the connotation, types and manifestations of interest relations (1) related basic theories.
The so-called "public * * * interests" refer to the * * * common interests of all social members who are above the society in form or substance. And "personal interests" are all kinds of interests owned by individual members of society, including their own special interests and shared public interests. There is a relationship of unity of opposites between them [iv]. They are both the same and contradictory. "Every member of society is always opposed to separating the public interest from his own personal interest, and always hopes to get more benefits from the public interest ..." [V]
From the basic theory of law, the interest relationship mainly involves three categories, namely, the relationship between public interest and public interest, personal interest and the relationship between public interest and personal interest. These relationships reflect the essence of various legal systems and form the basis of corresponding legislation.
(2) From the perspective of patent system: the characteristics and main forms of conflict of interest.
As far as the patent legal system is concerned, from the process of its emergence and development, it is also facing conflicts of interest. In view of the characteristics of the patent system itself, compared with other legal systems, the conflict of interest faced by the patent system has the following characteristics:
1. Conflicts of interest accompany the patent system and always exist in the development of the patent system.
Judging from the history of the establishment and development of the patent system, the contradiction and conflict between the monopoly interests of the patentee and the public interests is not a new problem. In a sense, balancing the contradiction and conflict between the monopoly interests of the patentee and the public interests is an eternal proposition accompanying the emergence and development of the patent system.
Since the establishment of 1623 British patent system, the patent system has developed for more than 300 years, during which the patent system has developed greatly. So far, more than 70 countries and regions in the world have established patent systems [vi]. However, a phenomenon that can't be ignored is that there has always been a conflict between the monopoly interests of the patentee and the public interests, from the dispute over the advantages and disadvantages when the patent system was first established in Britain to the great debate on the retention or abolition of the patent system in western Europe in the middle of the19th century. From 1869, when Switzerland abolished the patent law, to 1849- 1887, the Swiss patent law was promulgated after more than 30 years of referendum [vii], all of them revolved around the conflict between the monopoly interests of the patentee and the public interests. In the face of conflicts of interest, the laws of various countries have to make necessary choices and integration in system design and specific provisions of laws in order to give full play to the due role of patent system and adapt to social and economic development.
2. Compared with other legal systems, the conflict of interest in the patent system has the characteristics of centralization and prominence.
As far as the three kinds of interest relations involved in legal theory are concerned, in the patent system, the conflict of interest mainly focuses on the third kind of relationship, that is, the conflict between the monopoly interest of the patentee and the public interest. This feature is closely related to the purpose of establishing the patent system: on the one hand, the patent system is established to protect the monopoly interests of inventors and creators and encourage inventions. On this premise, the law needs to give the patentee more rights and interests and protect the patentee's monopoly on invention and creation to the maximum extent; On the other hand, for the country and society, the establishment of the patent system is to promote the progress and development of the country's overall science and technology, and to achieve this goal, it is necessary to "reduce" the monopoly power of the patentee and popularize and apply those inventions and creations that have a positive effect on the interests of the country and society by legal means as soon as possible. Obviously, under this premise, the conflict between the patentee's monopoly interests and the public interests is revealed, which is manifested as follows: (1) In the monopoly of technical content, the patentee always wants to publish the content of his invention as little as possible; From the point of view of being conducive to the popularization and application of inventions, the public always wants to know more about the contents of inventions, and hopes to facilitate the manufacture of patented products and the use of patented methods through the contents disclosed by patentees; (2) In terms of the object scope of obtaining a patent, patent applicants often hope to include more inventions into the authorized object scope, so as to expand the possibility of obtaining their rights; From the perspective of safeguarding public interests, the state should impose certain restrictions on the objects of patents and exclude those inventions that violate national laws and hinder public interests from the scope of patent authorization;
(3) From the perspective of the implementation of the licensed patent, in order to ensure the monopoly interests of the patentee, the right holder often hopes that the law will give him broader rights and more comprehensive protection to ensure the "absolute monopoly" in patent implementation; From the perspective of national and social interests, in order to prevent the patentee from abusing his rights and use prohibitive provisions to prevent the promotion and implementation of inventions beneficial to national and social interests, it is necessary to make restrictive provisions in the design of legal system to reduce the monopoly power of the patentee;
(4) From the perspective of the international community, due to the comprehensive effect of social and historical reasons, there are differences in science and technology, economic development and patent protection among countries, and there are also obvious differences in safeguarding the monopoly interests of patentees and public interests: developed countries with technological advantages often emphasize the protection of the monopoly interests of patentees, hoping that their patents abroad will be treated equally; In terms of patent protection, countries with relatively backward economy and technology tend to safeguard public interests and establish a relatively loose patent protection system with a low level of protection. With the development of internationalization of intellectual property rights, the difference in this protection is becoming more and more prominent.
In addition to the contents mentioned above, contradictions and conflicts are also manifested in the timeliness and regionality of patents. In the development of the patent system, the conflict between the monopoly interests of the patentee and the public interests is inevitable. Faced with these problems, legislation needs to make choices and integration, and make reasonable institutional arrangements in law according to relevant legal theories and social reality.
Third, the conflict of interest resolution mechanism.
(A) the theoretical basis of the settlement mechanism: the principle of balance of interests
Judging from the existing legal research results, there are mainly the following viewpoints in solving the conflict between personal interests and public interests: (1) Personal interests theory. It is argued that when personal interests conflict with public interests, the starting point of legislation should be to protect personal interests. (2) Public interest theory. In the contradiction between public interest and personal interest, it is considered that public interest is the main aspect of the contradiction, occupying a dominant position: personal interest should be subordinate to public interest, and it is in favor of Grotius' view that "the state has more power to control private property than property owners" [viii]. (3) The theory of balance between personal interests and public interests. Law is the regulator of interest relations. When personal interests conflict with public interests, we should coordinate and balance the relationship between obligee and public interests through legal integration.
As far as the patent system is concerned, the author agrees with the third view. The main reason is: (1) From the perspective of the development history of the patent system, both the early patent law, the patent laws of modern countries and relevant international treaties revolve around this center: that is, how to balance the interest relationship between inventors and users by legal means as much as possible, and how to design the system to coordinate the relationship between monopoly interests and public interests of knowledge creators. It has become the core of patent legislation to seek the coordination and balance between the monopoly interests of the patentee and the public interests. (2) In line with the purpose of establishing a patent system: the basic purpose of patent legislation is to "encourage invention and creation, facilitate technology transfer and application, and promote the development of social science and technology". In order to achieve this goal, on the one hand, it is necessary to clearly define the rights of patentees and play the role of "encouraging inventions"; On the other hand, in order to "facilitate the transfer and application of technology and promote the development of science and technology", it is necessary to appropriately restrict the rights of patentees. That is, to achieve a balance between personal interests and social interests in the design of the legal system.