Technical note on legal aspects
Art 31(f) does not prohibit exports by licensee.
Reading Art 31(f), as required by established rules of interpretation of
international treaties and also by Doha Declaration, it will be observed
that: -
Art 31(f) is intended as a protection for domestic consumers and to
discourage tendency to neglect domestic demand giving preference to
profitable exports. Therefore, right to object (or to waive it) to
exports by licensees without satisfying the requirement of pre-dominant
domestic supply, would be with the government and consumers and patent
owner cannot object.
Art 31(f) is flexible treated as such by USA, France, UK and others –
Art 31(f) is flexible and the requirement of ‘predominantly for supply of
the domestic market’ is optional and may not be insisted upon.
Most of the important WTO Member Countries have, in their patent laws,
treated Art 31 and its different requirements, including Art 31(f) – as
flexible, or optional.
In this context, reference can be made to US statute – 28 USC 1498, French
Patent Law Art (l) 613-16 ‘Crown Use’ provisions of UK Patent Act 1977
etc., (even after 1999 amendment for TRIPS compliance), and others, each
of which is ex-facie non-compliant with or violative of Art 31
requirements. Such references apart from providing confirmation of
flexibility of Art 31 provisions, also show that such other countries
cannot object to other Member countries treating Art 31, and particularly
Art 31(f) as flexible, not as a mandatory obligation. It cannot be said
that these countries can treat Art 31 as flexible for their own patent
laws, but as mandatory for other countries.
Reading Art 31(f) as prohibiting exports by licensee
Even on the assumptions that the patent owner has the right to prevent
exports and Art 31(f) bars exports by licences, further options –
independent of each other - are available. Based on the considerations
any or more of the matters namely, -
The exercise of any such exclusive right i.e. remedy of patentee, for any
infringement can be regulated and controlled to allow its enjoyment by
payment of adequate compensation or reasonable remuneration, rather than
by actual stoppage of production, exports, supplies, distribution or sale
of such products.
Extracts from Supreme Court Judgements -
People’s Union for Civil Liberties v. Union of India
“In our opinion, the right to life and liberty guaranteed by Article 21 is
so fundamental and basic that no compromise is possible with this right.
It is ‘non-negotiable’. … The State has no right to take any action which
will deprive a citizen of the enjoyment of this basic right except in
accordance with a law which is reasonable, fair and just.”
At Para 9
“True it is that Constitution must be read as an integrated whole; but
since the right guaranteed by Article 21 is too fundamental and basic to
admit of any compromise, we are not prepared to read any exception into it
by a process of interpretation.”
In Paschim Banga Khet Mazdoor Samity v. State of W.B.:
“The Constitution envisages the establishment of a welfare State at the
federal level as well as at the State level. In a welfare State the
primary duty of the Government is to secure the welfare of the people.”
Providing adequate medical facilities for the people is an essential part
of the obligations undertaken by the Government in a welfare State.
“Failure on the part of a government hospital to provide timely medical
treatment to a person in need of such treatment results in violation of
his right to life guaranteed under Article 21.”(Para 10)
LIC of India vs. Consumer Education & Research Centre
“The authorities or private persons or industry are bound by the
directives contained in Part IV, Part III and the Preamble of the
Constitution.
“The Preamble, the arch of the Constitution, assures socio-economic
justice to all the Indian Citizens in matters of equality of status and of
opportunity with assurance to dignity of the individual. Article 14
provides equality before law and its equal protection. Article 19
assures freedoms with right to residence and settlement in any part of the
country and Article 21 by receiving expansive interpretation of right to
life extends to right to livelihood. Article 38 in the Chapter of
Directive principles enjoins the State to promote the welfare of the
people by securing and protecting effective social order in which
socio-economic justice shall inform status, to provide facilitates and
opportunities among the individuals and groups of the people living in any
part of the country and engaged in any avocation. Article 39assures to
secure the right to livelihood, health and strength of workers, men and
women and the children of tender age. The material resources of the
community are required to be so distributed as best to subserve the common
good. Social security has been assured under Article 41 and Article 47
imposes a positive duty on the State to raise the standard of living and
to improve public health.” (Para. 14)
“Article 25 of the Universal Declaration of Human Rights envisages that
every one has the right to standard of living adequate for the health and
well-being of himself and of his family including food, clothing, housing
and medical care and necessary social services and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in the circumstances beyond his control.
Article 7 of the International Covenant on Economic and Social Rights
equally assures right to every one to the enjoyment of just and favourable
conditions of work which ensures not only adequate remuneration and fair
wages but also decent living to the workers for themselves and their
families in accordance with provisions of the Covenant. Covenant on Right
to Development enjoins the State to provide facilities and opportunities
to make rights a reality and truism, so as to make these rights
meaningful. (Para. 15)
“The basic framework of the Constitution is to provides a decent standard
of living to the working people and especially provides security from the
cradle to the grave. Every State action whenever taken must be directed
and be so interpreted as to take society one step towards the goal of
establishing a socialist welfare society. While examining the
constitutional validity of legislative/administrative action, the
touchstone of the Directive Principles of State Policy in the light of the
Preamble provides yardstick to hold one way or the other .(Para.16)
“It would thus be well-settled law that the Preamble, Chapter of
Fundamental Rights and Directive Principles accord right to livelihood as
a meaningful life, social security and disablement benefits are integral
schemes of socio-economic justice to the people, in particular to the
middle class and lower middle class and all affordable people.” (Para 18)
AIR 1995 SC 922
“Therefore, it must be held that the right to health and medical care is a
fundamental right under Art. 21 read with Article 39(c), 41 and 43 of the
Constitution and make the life of the workman meaningful and purposeful
with dignity of person. Right to life includes protection of the health
and strength of the worker is a minimum requirement to enable a person to
live with dignity. The State, be it Union or State Government or an
industry, public or private is enjoined to take all such action which
will promote health, strength and vigour of the workman during the
period of employment and leisure and health and happiness. The health
and strength of the worker is an integral facet of right to life.
Denial thereof denudes the workman the finer facets of life violating
Art.21.”
(1997) 3 SCC 433
At Para 8, cites from the AP High Court decision in the Challo Ramkonda
Reddy v. State of A.P. with approval the following –
(SCC pp. 43-44 & 48, paras 9 & 16)
(1995) 5 SCC 482
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