compulsory licensing of patents in India how to get compulsory licensing in India, procedure, rights involved, act and sections,limitation of compulsory licensing, government rights for compulsory licensing,well good for law students
2. WHAT IS PATENT ?
Patent, is a legal document granted by the
government giving an inventor the exclusive
right to make, use, and sell an invention for a
specified number of years. Patents are also
available for significant improvements on
previously invented items.
3. COMPULSORY LICENSE
LICENSE: A license is an official permission or
permit to do, use, or own something.
A compulsory license provides that the owner
of a patent or copyright licenses the use of
their rights against payment either set by law
or determined through some form of
adjudication or arbitration
4. COMPULSORY LICENSING OF PATENT IN INDIA
Section 84 and 92 of the Indian Patent Act,1970
pertains to the grant of compulsory licenses.
Compulsory licenses are granted in order to :
Prevent the abuse of patent as a monopoly.
Make a way for commercial exploitation of the
patented invention by an interested person.
Address the public health concern in India.
5. Procedure for grant of Compulsory
License under IPA, 1970
Section 84 of the Indian Patent Act allows any
interested person after 3 years (expiry) of grant
of patent even though if he is licensee under the
patent-
Reasonable requirement of public with respect
to patented invention, have not been satisfied.
Patented invention is not available to the public
at reasonable price.
The Invention is not worked commercially to the
fullest extent in the territory of India.
6. While granting a compulsory license the
controller has to take into account
• Nature of the invention
• Time elapsed
• Ability of the applicant to work the invention
• Applicant’s effort for obtaining a license on
reasonable terms
7. Revocation of Patents by Controller for
Non-Working
According to Section 85 of Indian Patent Act, a
patent can be revoked, if the applicant to
whom the compulsory license is granted does
not work the patented invention in the
territory of India within two years from the
grant of the compulsory license and further,
the public requirements has not been met at
affordable price.
8. Terms and Conditions of Compulsory
License
• Royalty and other remuneration, if any reserved to
the patentee or other person beneficially entitled
to the patent.
• Patented article should be worked to fullest extent
by a person to whom the license is granted.
• Patented article should be made available to the
public at reasonably affordable prices.
• License granted is non-exclusive license.
• The right of licensee is non-assignable.
• License is for the balance term of patent unless a
shorter term is consistent with the public interest.
9. Licensing of Related Patents
Section 94 of the Act deals with termination of
compulsory license, It provides that on an
application made by the patentee or any other
person deriving title or interest in the patent,
a compulsory license granted under section 84
may be terminated by the Controller, if and
when the circumstances that gave rise to the
grant thereof no longer exist and such
circumstances are unlikely to recur.
10. Use of Compulsory License by the
Government
• The government undertaking may acquire a patented
invention for its own use, make, exercise or vend on
payment of adequate remuneration or
compensation (Sections 99 to 103).
• The Central Government may acquire a patented
invention for a public purpose.
• The patent holder is still the owner of the patented
invention even after the issuance of compulsory license
for Government use.
• In the case of acquisition of the patented invention by
the Government for public purpose, the patent owner
loses all rights in the patent to the Government.
11. India's first compulsory license
• The country's first compulsory license has
been granted by the Indian Patent Office to
Hyderabad-based drug-maker Natco.
• A landmark decision, under the amended
Indian Patents Act (2005), allows Natco to
make and sell in India, a similar version of
Bayer's Nexavar, an advanced kidney cancer
drug.
