Korea, the Pharmaceutical Industry and Non-Commercial Use in the TRIPS Agreement

In 2002, a number of associations requested the Korean Patent Office to issue a compulsory license for the manufacture of a drug under the Korean patent provision which permits the issue of compulsory licensing for public non-commercial use. This provision in the Korean patent act was introduced in 1995 ostensibly to comply with Article 31 of the TRIPS Agreement which permits the issue of compulsory licenses without prior consultations with the patent holder. In a change of strategy, the objection to the issue of a compulsory license for the drug, Gleevec, was filed not by the patent holder or by PhRMA, the association and lobby group of the pharmaceutical industry, but by certain individuals claiming to have legal expertise, and sympathizers of the pharmaceutical industry. The objection raised was based on the concept of legitimate expectation, a concept not applicable in the case of the TRIPS Agreement. The objections raised do not appear to be supported by a legal argument and appear to be arbitrary in nature. In addition, they appear to reflect PhRMA’s aims of curtailing the flexibility inherent in the TRIPS Agreement.