Compulsory licence on a patent application: an idea making its way
The compulsory licence is an instrument everyone cites and nobody uses. The health crisis showed the limits of that position: where the need is immediate, the debate moves from principle to technique, and a simple question appears. If a published patent application already allows its holder to act against a third party, why should it not, symmetrically, allow a limitation in the public interest?
The starting point: a published application confers rights
In several States, a published demande de brevet already opens the way to an action, sometimes as far as a provisional measure. The licence obligatoire, by contrast, is traditionally confined to the granted patent. That asymmetry is hard to justify: the applicant can obtain a prohibition, while the community cannot obtain a licence on the same subject matter.
We have examined elsewhere the neighbouring question of thepreliminary injunction based on a mere application under French law, where the Paris Court of Appeal currently holds such applications inadmissible: see our article onpreliminary injunctions and patent applications. The comparison is instructive: both debates turn on the same premise, what a published application actually produces.
What international law already allows
The TRIPS Agreement, in Article 31, frames use without the authorisation of the right holder without reserving it to a formal category of title. It imposes conditions, not an exclusion: consideration on its individual merits, a prior attempt to obtain a voluntary licence except in a situation of urgency, limited scope and duration, non-exclusive character, adequate remuneration and judicial review. Nothing in that architecture requires leaving aside the published application on which its holder can already rely.
The AIPPI resolution of 2025
The AIPPI World Congress, meeting in Yokohama in 2025, adopted a resolution on compulsory licensing confirming its exceptional character and calling for greater predictability, legal certainty and harmonised procedural safeguards. That orientation does not weaken the thesis defended here, it frames it: extension to published applications only makes sense if it carries the same conditions of necessity, proportionality and fair remuneration.
Why the property objection does not hold
The classic objection is that a licence on an application deprives the applicant of a right it does not yet have. The argument turns against itself. If the application confers nothing, it cannot support an action for Infrigement ; if it confers something, that something bears the same limits as the patent. And where the application is finally refused, no deprivation has occurred, since the licence concerned an object that never existed as a title.
Patent law is made of relative rights, bounded by duration, by territory, by exceptions and by the requirement of working the invention. The compulsory licence is not a departure from that logic, it is part of it.
What to take from it in practice
For a State, the lesson is that a crisis mechanism must be written before the crisis, failing which it arrives too late. For a holder of licences and for an applicant, it is that voluntary restraint, a licence offered spontaneously in a situation of public interest, strengthens the legitimacy of the title and reduces the risk of an imposed measure. The constraint best avoided is the one anticipated.
We advise laboratories, applicants and authorities on these questions, in particular in the pharmaceutical disputes tracked in our Pharma Litigation Watch. Contact us.
This article is an updated adaptation of an analysis by Matthieu Dhenne originally published on Kluwer Patent Blog on 28 October 2025: Compulsory Licenses on Patent Applications: An Idea Making Its Way. Official source: AIPPI, resolutions adopted at the 2025 Yokohama World Congress, including resolution Q293 on compulsory licensing.