Pending before the Philippine Congress and certified as urgent by President Gloria Macapagal Arroyo are two bills or proposed laws: House Bill No. 6035 and Senate Bill No. 2263. Both have the objective of providing cheaper medicines, and are expected to be approved in the coming session of the Congress in June 2007. One common subject matter tackled in these bills is the amendment of Section 74 of the Intellectual Property Code (IP Code, RA 8293) referring to compulsory licensing of a patented invention by the government. Under RA 8293, the use by the government or a third person authorized by the government may be done without the agreement of the patent owner in two instances. First, if there is a public interest requirement, or secondly, if a judicial or administrative body has determined that the exploitation by the patent owner is anti-competitive, but subject to compulsory licensing. The terms and conditions of the licence are determined by the Bureau of Legal Affairs of the Intellectual Property Office in an action for compulsory licensing.

HB 6035 seeks to introduce a new chapter into the IP Code with the title Non-Patentable Inventions, Parallel Importation, Early Working Provisions, and Government Use of Drugs or Medicines. The salient points of this new chapter are:

To allow the government or a third person authorized by the government, without the agreement of the patent owner, to exploit the invention of a drug or medicine in cases of national emergency or other circumstances of extreme urgency, or where there is public non-commercial use of the patent by the patentee without a satisfactory reason.

The control, supervision and determination of the use or exploitation of the invention is lodged with the Secretaries of the Department of Health and Department of Trade and Industry, which means the requirement for the filing of an action for compulsory licensing is done away with.

The determination of the Secretaries of the Department of Health and Department of Trade and Industry is immediately executory and is not subject to any temporary restraining order or preliminary injunction or other provisional remedies that will prevent the implementation of the decision.

In the case of SB 2263, by simply notifying the patent holder within a reasonable period, in situations of national emergency or other circumstance of extreme urgency, public non-commercial use, the use or other exploitation of drugs or medicines by the government or third person authorized by the government shall be subject to the exclusive determination of the president of the Republic of the Philippines and shall be immediately executory, and can only be restrained or enjoined by the Supreme Court.

In both HB 6035 and SB 2263, the requirement for the filing of an action for compulsory licensing has been eliminated, the determination of the government to use or exploit the invention or drug is immediately executory and cannot be subject to a temporary restraining order, preliminary injunction and other provisional remedies, and instead notices to the patent holders shall apply, to enable the government to deliver cheaper medicines or drugs in public health emergency situations.

Editha R Hechanova