Legal regulation of compulsory licensing in European countries (review and comparative analysis)

Abstract

The topic of compulsory licensing is one of the most controversial in the field of intellectual property protection, including in our country in modern realities. At the same time, practically none of the legal scholar has any doubts about the need for this measure as a legal mechanism aimed at achieving a compromise between the private interests of patent holders and public interests. However, many questions arise about the possible legal tools for the issuance of compulsory licenses, so it is interesting to review the European experience in the legal regulation of compulsory licensing, followed by a comparative analysis of the legal mechanisms’ features. An overview of the legal regulation features of compulsory licensing in a number of Central European countries is presented: Austria, Hungary, Germany, the Netherlands and Switzerland. The main legal norms of these countries devoted to the issuance of compulsory licenses are highlighted, with their subsequent comparative analysis. Thus, it was noted that, despite the commonality of approaches, in different States the possible grounds and conditions, as well as the authorized bodies and procedures for issuing compulsory licenses differ depending on the historically developed national characteristics of civil and administrative legislation. Countries are identified in which compulsory licensing is carried out administratively or judicially. Special attention is paid to the legal norms of European countries on decision-making procedures, on the specifics of compulsory licensing in identifying anti-competitive practices on the part of the patent holder, etc. Examples of the issuance or refusal to issue compulsory licenses are also considered.