On Compulsory Licensing of Trade Secrets to Safeguard Public Health

Abstract

In the pharmaceutical sector an increasing number of new medicines are large-molecule products, namely biologics derived from living organisms, rather than small-molecule drugs synthesised from chemicals. Unlike small-molecule medicines, which are relatively easy to manufacture, large-molecule products are less stable and harder to produce. We investigate whether the current UK legal system provides an appropriate balance between the protection provided to technology owners and the public interest in accessing medical technologies, especially in times of emergencies. At present, UK law facilitates compulsory licensing of patents but has no equivalent scheme for trade secrets. Our analysis of the legal constraints on potential reforms suggests that a mechanism for compulsory licensing of trade secrets would be compatible with UK domestic law, the European Convention on Human Rights, the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights and other international agreements, provided appropriate safeguards are put in place to balance the rights of intellectual property holders with the public interest. The article contributes a detailed framework for the compulsory licensing of trade secrets, drawing parallels with voluntary technology transfer agreements, including provisions for defining the scope of transfer, maintaining confidentiality, restricting future use, providing fair compensation and ensuring enforceability.