Chapter 6: Adequate remuneration for Crown use of patents: Some guidance from constitutional property law
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Beside compulsory licensing, Crown/government/state use of patents is another (arguably broader) tool that governments can use to expedite or facilitate access to healthcare essentials (as highlighted by the COVID-19 pandemic), but also to progressively realise a much broader cohort of fundamental/human rights. This chapter explores the possibilities from constitutional property law principles, particularly expropriations/takings/compulsory acquisitions, in assisting to determine factors a court should consider when establishing just terms (including compensation) for government use or acquisition of a patent or invention. The basis for this approach is that both government use of a patent and an expropriation refer to a public purpose, and simply relying on private law principles as used for determining adequate remuneration for compulsory licensing in the context of government use of patents is too narrow, though market value is one factor and a sound point of departure.

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