Locally working patents and the grant of compulsory licences : the need for stronger statutory provisions in Africa

Abstract

According to a well-established legislative tradition of patent law, failure to work patents while exercising any rights over the patented inventions constitutes an abuse. Consequently, several countries impose affirmative duties demanding evidence of commercial exploitation from patentees and their licensees within their territories. In view of the socio-economic significance of local working of patents, this article examines the extent to which African countries could implement national actions to ascertain mandatory requirements on the part of pharmaceutical patentees to work patented medicines locally, of which by default compulsory licensing would be justified. To that end, the author contends that African countries have the right to demand proof of local working of patents within their jurisdictions in order that the reasonable affordable requirements of the public can be met, because importation of essential medicines entails high costs and shortages and would not provide a sustainable means of protecting public health