Under compulsory licensing, a government grants someone a license under a patent, e.g.to produce a patented product or process, without the consent of the patent holder. The possibility of a compulsory license is included in the WTO’s TRIPS agreement.
The individual or company seeking to use another’s intellectual property may have to pay the patent holder a fee for the license. This is an exception to the general rule that the patent holder enjoys exclusive rights, which he is free (not) to license to others.
Legal basis The legal basis for compulsory licenses under Argentine patent law is Decree No. 260/1996 of March 20, 1996, which approves the ordered text of Law No. 24.481 on Law of Patents of Invention and Utility Models (Patent Law). The provisions for compulsory licenses are under Articles 42 to 51 of the Patent Law….
Legal Basis New Zealand is a signatory to the World Intellectual Property’s Trade-Related Aspects of Intellectual Property (TRIPS) Agreement. The legal basis for compulsory licenses under New Zealand Patent Law is the New Zealand Patents Act. The provisions for compulsory licenses are found in Sections 169 through 175. The grounds for obtaining a compulsory license…
Legal basis Chapter VI, Licensing and the Transfer of Rights, of the Industrial Property Law (IPL) of Mexico, establishes the legal basis for compulsory licenses. Articles 70 to 77, under Chapter VI, discuss in more detail the issuance of compulsory licenses. Article 70 Any person may apply to the Mexican Institute of Industrial Property (the…
Legal Analysis The legal basis for compulsory licenses under Canadian Patent law is the Canadian Patent Act (hereinafter “Patent Act”) Chapter 9. Additionally, Part 12 of Bill C-13 amends the Patent Act to permit the Government of Canada, upon the application to the Commissioner of Patents to make, construct, use and sell a patented invention to…
Legal Basis The legal basis for compulsory licenses under Japanese Patent Law is Article 83 of the Japanese Patent Act (Patent Act), which stipulates that, “Where a patented invention is not sufficiently and continuously worked for 3 years or longer in Japan, a person intending to work the patented invention may request the patentee or…
Readers of this blog know my interest in compulsory licensing as a balancing mechanism for patents[1]. For more than a year now, I have been repeating it wherever I can (here, in many peer reviews, French medias[2] and with French representatives[3]): in the face of the pandemic, patent holders must accept that their rights are…
Legal Basis In seeking to promote effective and adequate protection of intellectual property rights, South Africa became a signatory to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in 2005. This became the basis for compulsory licenses in South Africa. South Africa incorporated these provisions into the South African Patents Act 1997 (the Act),…
Although he pronounced against the IP Waiver on 23 April, French President Emmanuel Macron declared having changed his mind on 6 May, following the US administration’s surprising decision on 5 May. These contradictory statements have rekindled the controversy over the IP waiver, which is a wrong path that distracts the debate from the real issue:…
While pressure is building up on TRIPS Council for the suspension of certain obligations under the TRIPS Agreement during the COVID-19 pandemic, the Brazilian Senate approved on 29 April 2021 a bill facilitating the compulsory licensing of COVID-19 vaccines’ patents. The bill will be voted by the Brazilian House of Representatives and, if approved, it…
Legal basis The legal basis for compulsory licenses under German Patent Law is under Section 24 of the German Patent Act. The German Patent Act meets the requirements of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and the implementation of the Directive on the Legal Protection of Biotechnological Inventions (Directive 98/44/EC). A claim…
